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July 1995 Volume56, Number 5 Putlll:shedseve n umes a year (the June 1$$00l$ a bar ON THE COVER: PRESIDENT'SPAGE SIGNS OF A SUCCESSFULYEAR l hardly seems possible that another year in the chairedby Celia Collins, havebeen particularly active in encour long history or the AlabamaState bar is drawing aging unity of purpose to accomplishthe goals of the ba1·. The to an end. Traditionally,this is the time to recount Benchand Bar Conferencein Marchsponsored by the bar and some of the accomplishmentsof the year and the Judge Phelps' task force was very productivein our consensus Doutgoing president's hopes for the future. Due to Alabama building effort.Thal meeting, I believe, is a model of what we lawyer deadlines. I write this column in mid-May.But even at should do everyyear in bringingabout w1ityin our unified bar. lhis point, thanks lo the help of so many,th is has all U1es igns BobDenniston's Task Poreeo n Judicial Selectiondid not take of a successful year for our bar and I believewe will bring to off the rest oi the year after the Third Citizens' Conference on fruition other initiatives between now and the July annual Alabama Courts was convenedpursuant to your bar commis meeting, which marks the end of my term. sioners' December resolution.Th e task force has continued to The AlabamaState Bar committees, task forces and sections meet and suppy additional research and recommendationson have again performed great service for judicialselection measures to the board and this bar. our professionand the citizensof the Citizens' Conference leadership and Alabama. I will not give an account of the members.Th is informationhas been very committee and task force work as those useful to conference leaders Governor reports have been set out in the May Brewerand Justice Adamsand in Lhed elib Alabamalawyer and other pages here. It erations of the conference in its two day is important lo reiterate, however, that long conferences held thus far. almost all or our 42 committees and task It is hoped that the Citizens' Conference forces met on one or more occasions will reach some concrete recommendalions indicating very active participation by for improvemento f the judicial selection hundreds of Alabama lawyers who dedi system in Alabamao n both the trial and ap cated their valuable time to the work of pellate levels before our annual meeting. the bar. As I havementioned i n prior columns, there I thank all of lhe chairpersonsand com is verybroad support among l awyers.j udges mittee members for again demonstrating and lay peoplefor improvement in the judi the volunteerservice so typical in our bar. cial selection processi n Alabama.We must The volunteer spirit to serve among our not let this opportunity for improvement pass us by. members remains veryhigh. Broox G. Holmes t hesitate to single out specificcommit I acknowledge and thank l{eith Norman tees; however, I think we should take and each member of the bar headquarters note of a few. In August 1994, the Alter- staff for their dedicated work this year. I native Dispute Resolutioncomm ittee, chaired by BillColeman, know there was some concern when our good friend Reggie opened the AlabamaCenter for Dispute Resolution-an ADR Hamner retired last year, but I can tell you that l{eith is management coordination, researchand developmentoffice already performing like a veteran executivesecret" 200 /JULY 1995 THE ALABAMAI..AWYER NeedMore EstatePlanning Clients? r;I If you want a steady stream of new, qualifiedclien1s coming in-so you can relax knowing you'll have consistentcash now everymonth ... riff Tfyou want to workfewer h ours-so you can spendmore time with your friends & family... riff If you want a systematizedway to producedocuments and stayon top of the law-so you can feel in controlof your life and yourbusiness ... riff If you want to followa proven,s 1ep-by-step practice building systemt hat'sg uaranteedlo increaseyour income and the quality of yourlife ... You'll Want to Find Out More About Membership in the American Academy of Estate Planning Attorneys and the "Executive TrainingProgram " Which is Starting Soon. Call toll-free 1-800-846-1555 Ask for the "freeinformation package & audiotape " ~ AMERICAN l i''lllil ACADEMY -----of--- Estate Planning Attorneys Call Now, Because Membershipis Available Only on an Exclusive Basis The Academy limits the numbe r of members In each geographic area. Call now to find out if membership is available in your area. Preside nt's Page Conlinuedfrom page 200 NOTICE TO SHOW CAUSE AlabamaState Bar after serving splendidly as Judge Advocate • Notice is hereby given to Timothy Patrick General of the Air Poree. We are indeed indebted to Bob Norris McMahon of Foley, Alabama that pursuant to an for the great job he has done in taking charge of and improving order to show cause of the Disciplinary Commission greatly the bar's Center for ProfessionalResp0nsibility and our of the Alabama State Bar, dated March 31. 1995, he disciplinary system. We will miss Bob and Martha and we wish has 60 (sixty) days fro.m the date of this publication. them the very best in the future. (July 18, 1995), to come into compliance with the Now in parting I say: This is a great bar. I said at the begin Mandatory Continuing Legal Education require ning of my term that we can be better and that the only thing ments. Noncompliance shall result in a suspension holding us back is U1edivisiveness and a lack of unity which of his license. has come about in recent years. I believewe have helped to im (CLE No. 95-16] prove on our lack of unity. We have not cured it. It is my ferventhope that the AlabamaState Bar will never be used by a11ymembe rs to foster positions supportive of special interests such as a particular viewpoint in the civil justice sys tem. It is good for all lawyers to seek to serve the bar but the NOTICE TO SHOW CAUSE guiding light of those who seek an officein U,isbar should always • Notice is hereby given to Timothy Patrick be to serve for the purp0ses for which it exists. If we serve this McMahon of Foley, Alabama that pursuant to an bar 1viththe resolveto rise abovespecial interests and self inter order to show cause of the Disciplinary Commission ests to address the greater professionaland public good • as I of the Alabama State Bar, dated May 9, 1995, he believe has been done for the last 117 years · we will continue has 60 (sixty) days from the date of this publication, to have an Alabama State Bar that truly serves all Alabama (July 18, 1995) to come Into compliance with the lawyersand the people of Alabamaas it was created to do. Client Security Fund Assessment. Noncompliance In 1941. as he left the office of president of this bar. a great with this assessment shall result in a sus~ension lawyerfrom Mobile,Sam M.Johnston , said of the office,.. It is an wlth his license. [GSF No. 95· 1OJ honor worthy of any lawyer'sambition ... J agree with Mr. John ston and I again thank each of you for giving me this opp0rtuni· ty to serve our profession. • ·~~ ERIS TEC ,HNOLOGIES ANNOUNCES 1 ~ CHILD SUPPORT SOFTWARE: CS*AL ver. 2.0 , Choose improved MSDOS version or our New WINDOWS version! Print Pr eview • Up to 250 Saved Cases • Default County, Court & Remit To: choices Available Jul y 1 at the special introductory prices listed below· Price increase September l. 1r------I want------to order CS*------AL 2.0 · Child Support------Software for Alabama. ---, 1 Name: Finn: Licensedto indi\'iduuJattorney. Nrunt is required '~A-11-omc-·y-a-1~Ul- "~,.-w-ill~bc~ u-scd-ifrn-ru_n_c-o(r u~um~is-,-,0-1-su-pp~l-,ed~- 1 Address: ______State: __ Zip: __ _ Ph: (_)_· __ Disk Size: 3'h 5 Y. Pay by: CK __ MO VISA MasterCard Card# : Expires:_/_ Sign: ------MS-DOS ver. $89.95 + $8.95 SIH• Windows ver. $119.00 + $8.95 S/H Total Encl: $ __ 1 : ~t; ~Eri~ Technologies, Inc., 3928 Montclair Rd., Ste 134 Bim1i.ngham, AL 35213 L-----, --or -call-- --••••••••••(205) 906-8693 (orders)•••••------or 906-8672-- -(tech------support) ~ 202 /JULY 1995 THE At.ASAMALAWYER EXECUTIVEDIRECTOR'S REPORT A GLANCE AT YOUR ALABAMASTATE BAR, PART II Fiscal Operations rv 1991-1992 S1.601MM l'Y 1992-1993 Sl.965MM How Is the Alabama State Bar funded? rY 1993-1994 S2.144MM IIprograms and activitiesof the AlabamaState Bar The budget hasgrown signif=tly in the l)a$1 five yearsbasi · are funded by license fees, special membership cally in response to new or enhanced pro dues or user fees, e.g. bar ------, grams, activities and services offered to examination. Although the Lhc membership and the public as Dbar's budget goes through the state bud· approvedb y the board of bar commission geling process and is included in the ers. Much of the budget growth is attrib state's general fund. no state rewnues are uted prindpal)y to Increasingadminbtra includedin the bar's budgeL ti\'t and regulatoryservices. As bar membership has increased and Whi ch programs are manag ed programs have expanded, we have added on a break-ev en or partial fund• administrative staff to meet this increased In g basis? demand.Regulatory services have increased A number of bar programsaTe expected becauseof the risingnumber of grievances to break ewn financiallyeach year. These filed and investigated,the rising number ·break~en " programsare iunded b)•rtv · of UPL investigations and prosecutions, enues other than annual member fees: and the processing of more Client Securl• I. Admissions ty Fund claims. while insuring lawyer 2. Pro Hae Vice compliancewith the Client Security Fund 3. AlabamaBar Reportu Keith 8 . No...,,.n Rules.MCI£ Rulesand Intereston law>'trs ' Trust Account Rules. 4. Specialization The four principal areas of ongoing interest of bar commit Whic h program s are fund ed pr imar ily by m e m tees and task forces are, with the number of commiltces or ber fees? task forces in parenthesis, focus on the profession (20). bench Most bar programs or activitiesare funded by member fees. and bu (3), public service (12) and bar management and gov. Typically,these are public service programs or the regulatory emance (3). responsibilitiesof the bar. I. Communications Program What a re examples of the ba r's activi ty in 2. Client Securily Fund Adminlsl1·ation these key a rea s? 3. LawyerReferral Service Publi c Service 4. MemberPe:riodicals I. Committee on Client Security Fund. The staff provides 5. Discipline administrative support to this committee which reviews, evaluates,det ermines and pays claims riled by members of 6. MCLE the public for attorney malfeasance. Last year the fund 7. Board of Commissioners p.1id $49,814.08 in claims. 8. Committeesand Task Forces 2. Committeeon Accessto LegalServices. This committeehas O\'ersightof the bar's VolunteerLawyer Program and works What is the history of th e bar's budget over directlywith the VLPdirector to recruit lawyersfor the pro the pa st fiv e years? gram by increasingawareness of the public and the profes l'Y 1989-1990 $J.364MM sion. More than 1,600 lawyers are now participating in FY 1990-1991 Sl.476MM this program. TlfE ALABAMALAWYER JULY1995 / 203 3. Committee on AlternativeDispute Resolution.Former ly a LiaisonCommittee and the Judicial Conferencefor the State task forceand nowa committee, this group has been instru of Alabama. mental in the supreme court's adoption of civil mediation rules, and the establishmentof the Center for Dispute Res Foc u s o n t he prof essi on olution, as well as recommending the Supreme Court 1. Editorial Boardof TheAlabama /.,awyer.The board of edi Commission on DisputeResolution. tors is an advisoryboard and assists the editor in publish 4. Judicial Selection Task Force.The task force membershave ing The Alabama law.I/er and other pubI i cations assigned studied the issue of judici,d selectionas well as the financ to it by the board of bar commissioners. ing of judicial campaigns.The findingsand recommenda 2. PermanentCode Comm ission. The Commission worksclose tions of this task force have been furnished to the Third ly with members of the general counsel's staff in monitor Citi~ens' Conferenceon AlabamaState Courts. ing wheU1erthe Rules of Professional Conduct meet the 5. Other committeesand task forcesInvo lved in public service needs of the legal profession and the public, as well as includeInd igent DefenseCommittee, Prepaid Legal Serv ices serving as a clearinghouse for all proposedamendments or Committee, Law Day Committee. Citizenship Education changes lo the rules. Committee, Committee on Correctional Institutions and 3. Committee on LawyerPublic Relations.This committee Procedures.and the AdultLiteracy Committee . works directly with the bar's director of communications Ben ch a nd Bar to provide public education and public information and Bench and Bar Committee. This committee has worked to publicizethe servicesavailable lo the public from the bar. encourage joint activities between the bench and bar includ 4. Task Forceon Solo and Small Firm Practitioners.Work ing ing joint programs al the mid-winter meeting of the circuit with bar staff,the charge of this task force is to determine and district judges associations.and the recent ;'UnityConfer any significant problems or issues that confront solo prac ence" involvingrepresentatives of different segments within titioners and membersof small firms and whal lhe bar can the bar. do lo assist these members in particular. For the purpose Other committeesand task forcesinclude the SupremeCourt of this task force's mission. "small firm" includes five or fewerm embers. 5. Other committees and task forces involved in this area include Insurance Programs Committee. Task Poree on Minority Participationand Opportunity, Ethics Education WE SAVE YOUR Committee,Women i n the Profession Task Force, and Com mittee on LocalBar Act ivities and Services. TIME ... Bar manag ement and govern a nc e ~a rnell Now legal researchassistance LongRange Planning Task Force.With the adoptionof a long is available when you need ii. range plan by the board of bar commissioners. this committee works with the staffand other bar -committeesand task forces L E G A L wilhoutt he necessityof addinga rutt-rimeassociate or to accomplishthe ten broad objectivesof this plan. Rese arch clerk. Futur e of the bar The long range plan was approvedin September 1994al the With access 10 the Stale law Libraryond Westlaw. we recommendationor the Long Range Planning Task Force ably providefast and efficientservice . For deadlinewor k. we chaired by Camille Cook of Tuscaloosa.T he long range plan, can deliver information10 you via commoncarrie r. the work productof that task force,is a blueprint for the future Federal Express.or FAX. of the Alabama State Bar. The bar's mission statement ascon FarnellLegal Research examines the issues 1horoughly tained in the long range plan states; throughquality research.brief writingand analysis. "The AlabamaState Bar is dedicated to promoting profes sional responsibilityand competence of its members,improving Our rares are $35.00 per hour. wilh a three hour the administration of justice, and increasingthe public under minimum. standing of and respect for the law." For Research Assistance contact: To accomplish this mission, the plan sets forth ten general Sarah Kathryn Farnell objectivesthat will serve as a road map into the next millenni um. A copy of the long range plan tan be obtained by contact· 112 Moore Building ing state bar headquarters. Montgomer y, AL 36104 Conc lu sion Call (205) 277•7937 This quick overviewdoes not detail the full menu of bar pro grams and activities. but by highlighting those I believe to be Nofl1P(llSB(tilli is madelhal tre QWli)'lS IDbe pe,frm-ed of specific interest to most of you, I hope to have provideda is gr...:er119'1 lhe Qlallyd legalsm 204 / JULY1995 THE ALABAMALAWYER ABOUTMEMBERS , AMONGFIRMS North, Suite 900. Birmingham.Alabama of Langston. Frazer & Sweet. The new ABOUT MEMBERS 35203.Phone 1205)328-2200. name is Langsto n, Frazer, Sweet & Freese . Offices are localed at 1040 David A. McDonald announces Lhe Donna Wesson Smalleyannounces the Financial Center. 505 N. 20th Street, opening of his ofnce at 208 S. Warren association of Jason Ba.ird. 0/fices have Birmingham, Alabama 35203. Phone Street, Mobile, Alabama36602. The mail been relocatedlo 601 GreensboroAvenue, (205)458-3550. ing addressis P.O.Box 832. Mobile 36601. Tuscaloosa, Alabama35403. Th e mailing Phone (334) 434-0045. address is P.O. 1488. Tuscaloosa35403. Rutland & Braswella nnounces that L. Phone (205) 758-5576. Cooper Rutland, Jr. has joined the firm Mark C. ~tonllel, former judge of lhe Gary O. Hoo1X?rand R. Stephen Griff as an associate.Offices are located at 208 Alabama Court of Criminal Appeals, N. Prairie Street, Union Springs. Alaba announces the opening of his office at is announce the formation of Hooper & ma. The mailingaddress is P.O.Box 551. 6754 Taylor Circle, Montgomery,Alaba Criflis. Officesare localed at NewSouth Union Springs 36089. Phone (334) 738· ma 36117.Phone (334)277· 7525. FederalSavings Building, 8th Floor, 215 N. 21st Street. Birmingham. Alabama 4770. Edward E. Blair announces the reloc:.a 35203. Phone (205)251- 7788. Weathington& Associates announces lion of his officeto 200 W.Court Square. James C. King and Can:e l\'ey, Jr. , that CoreyO. Moorehas joined the firm. Suite 51. Huntsville, Alabama 35801. formerly of Wilson & King, announce Officesare localedat 819 ParkwayDrive, The mailing address is P.O. Box 2855, the formation of King & Ivey. Barry A. Southeast. Leeds,Alabama 35094. Phone Huntsville35804. Phone (205)534-9995. Ragsdale joined the firm as an associate t205) 699-6164. Wayne K. Alexander, Jr.. formerly of in the Birmingham office, and Charles Watson,Fees & Jimmersonannounces £, the Morgan County District Attorney's Harrison and Clatus Junkin, former lhat Charle5 H. l'ullcn hasbecome a part circuit judge, have joined the F'ayette office.annou nces lhe openingof his office ner. Officesare locatedat AmSouth Cen at 302 Second Avenue,Soul heast. Suite office. ter, 200 ClintonAvenue, West. Suite 800. C, Decatur,A labama 35601.T he mailing Richard A. Freese has joined the firm Huntsville,Alabama 3580 1. The mailing address is P.O.Box 1286,Decatur 35602. Phone (205)355-9591. Paula I. Cobia. formerlyof Bolt. Isom. EXCELSLOR- L EGAL'S Jackson & Bailey,announces the open ing of her officeal Security Bank Build ing. 10 W. I Ith Street. Suite 20. Anniston. Alabama3620 I. The mailing ~y/akw~~ address is P.O. Box 1195, Anniston 36202.Phone (2051235-3903. 5 Kenneth Wilson, former assistant 249 state superintendent of education, an Ideal for Laser Printers nounces Lhe opening of his officeal 200 Sand Mountnin Drive, NW, Albertville. Includes: 1,000 Letterhead s and Envelopes Alabama35950. Phone (205)878-9 720. 500 Business Cards, 500 Plaln Second Sheets Robert C. Gammons announces the Also includes dies a11da proof. relocationor his officeto 108South Side 24 lb .. 25% Cotton, Laser Finish, White or Bamboo, Square.Huntsville. Alabama 35801. Phone RecycledB ond $249 (205)534-4557. 24 lb., 50% CottonLaw B ond, White. Bamboo and Laser White $259 Crane's and Gilbertpaper al additional cost AMONG FIRMS Engraving pla.nJs in Albany , NY and Orlando, FL Call/or samplrs and legal supply catalog, Ernest Cory.Leila Ji. Watson, Charles (800) 221-2972,ert. 503. R. Crowder.O. Bruce Petway,and Annes lcy H. DeGarlsannounce U1eformat ion of Cory, Watson, Crowder & Petway. ~slor-Legal, Inc.·· Orfices are localed at 300 21st Street, Tl IE ALABAMALA WYER JULY1995/ 205 address is P.O.Box 46, Huntsville 35804. Burdine& Long. Officesare located 102 associate.Offices are locatedat 900 Park Phone (205)536-7423. S. Court Street, Suite 412, Florence, Place Tower, 2001 Park Place, North, Alabama35630 -5656. Phone (205) 767, Birmingham . Alabama 35203-2759. Donald, Randall, Donald, Tipton & 5930. Phone (205)324-4400. Donaldson announces that Laurie K. Pratt has become an associate. Offices Joseph W. Strickland, Patrick F. Lanier, Ford, Shaver & Payne an are located at AmSouth Bank Building, Smith, Melissa K. Smith and James A. nounces that George E. Knox, Jr. has 2330 University Boulevard, 9th Floor, Haggerty, Jr. announce the formationof become a member and Jamie Manasco Tuscaloosa,Alabama 35401. The mailing Strickland,Smith & Haggerty.Offices are Brabston, Louise C. Porter and P. Scott address is P.O. Box 2155, Tuscaloosa locatedat 4 OfficePark Circle, Suite 212. Arnston have become associates.Offices 35403. Phone (205) 758-2585. Birmingham, Alabama 35223. Phone are located at 200 W. Court Square, (205) 870-4440. Suite 5000, Huntsville,Alaba ma 35801. Wallace, Jordan, Ratliff, Byers & The mailing address is P.O. Box 2087. Brandt announces the opening of their Balch & Bingham announces that RebeccaJ. Brown, 8. Davis Butler and Huntsville 35804. Phone (205) 535- Montgomery office and that Algert S. JJOO. Agricola, Jr. has joined as of counsel. Paul 8. Seeley have joined the firm as Officesare located in Montgomeryand associates. Officesare located in Birm, Bond, Boles, Thornton & Carlson an Birmingham,Alabama. ingham and Huntsville, Alabama and nounces that Mary frank Brown has Washington,D.C. joined the firm as an associate. Offices Bainbridge,Mims & Rogersannounces James W. Mayand Kathryn D. Ferrell are located at the Colonial l~inancial that Alfred F. Smith, Jr., formerlywith announcethe formationof May& Ferrell. Center,O ne CommerceStreet , Suite 101, Maynard,Cooper & Gale, has become a Montgomery, Alabama 36104. Phone partner. The firm's new name is Bain Officesare located at 307 S. McKenzie (334) 264-3363. bridge, Mims, Rogers & Smith. Offices Street, Foley, Alabama 36535. The mail ing addressis P.O.Box 549, Foley36535. are located at 1'he Luckie Building, 600 The followingattorneys announce the Phone(334) 943-2881 or (334) 943-2333. Luckie Drive at Highway 280. South, relocation of their offices to # 15 Office Suite 415, Birmingham, Alabama. The Burns , Cunningham & Mackey an Park Circle, Suite 100. Birmingham, mailing address is P.O. Box 530886, nounces that Gary W. Fillingim has be Alabama 35223: James M. Kendrick Birmingham 35253. Phone (205) 879- come an associate.Offices are localed at (205) 871-3ll6; D. WilliamRooks (205) 1100. 50 Saint Emanuel Street , Mobile, 802-7063; James S. Witcher (205) 871- Alabama. The mailing address is P. 0. 3056;Michael J. Romeo( 205) 871-5859; While, Dunn & Bookerannounces that Box 1583. Mobile 36633. Phone (334) and A. DozierW illiams (205)871 -5050. Oscar W. Adams, Jr., associate justice 432-0612. (Retired), Supreme Court of Alabama, Olschner & Associatesannounces that has joi ned the firm of counsel, and Sirole & Permutl announces that J. Mark Ha.rt has become a shareholder, Robert W. O'Neill, formerly vice-presi Charles A. Stewart, lll has joined as a and the new firm name is Olschner & dent and general counsel for South Cen shareholder and Dana Claire Gibson as Hart. Officesare locatedat 17 OfficePark t ra I Bell Telephone Company, and an associatein the Montgomeryoffice . Circle, Suite 100, Birmingham, Alabama.. James L. Sanders, II have joined the MichaelD. Rogers, Thomas H. Young 1'he malling address is P.O. Box 531228, firm. Offices are located at 1200 First and Stephen K. Wollstein , formerly Birmingham 35253. Phone (205) 879, Alabama Bank Building, Birmingham, partners with Boll, Isom, Jackson & Bai, 9905. Alabama35203 . Phone (205)323 -1888. ley, announce U1eformation of Rogers, Richard A. Thompson announcesthal Miller. Hamilton, Snider & Odom Young & Wollstein. Officesare located C. Brandon Halstead, Jr. hasbecome an announceslhat A. Carson I. Nicolsonand at Williamson Commerce Center, 801 associate.Offices are locatedat 2903 7th James Rebarchakh ave becomemembers, NobleStreet. Anniston,Alabama. Phone Street,Tuscaloosa , Alabama3540 l. Phone and Joseph E. Yesutis, W. Ben Broad (205)235 -2240. (205) 759-1512. waterand A. Lynne Wigginshave become Vickers, Riis, Murr;iy & Curran an Pierce, Carr. Alford, Ledyard& Latta associates. E. Barry Johnson has relo nounces that C. Richard Wilkinshas be cated to the Montgomeryoffice. Offices announcesthat James H. McDonald, Jr. come a member of the firm. Officesare has joined the finn. Officesare locatedat are located in Mobileand Montgomery. located at first AlabamaBank Building, Alabamaan d Washington.D.C. 1110Monllimar Drive, Mobile , Alabama Mobile.Alabama. 36609.The mailingaddress is P.O.Box Felq & Hydeannounces the association Armbrecht. Jackson, DeMouy,Crowe, 16046, Mobile36616. Phone (334) 344-5151. of Ka\herine N. Barr. Officesare located Holmes & Reevesannounces that James Steven C. Sasser and Robert D. at 2100 South BridgeParkway, Suite 590, E. Robertson, Jr. and Scott C. Brown Weathers, Jr. announce the formation Birmingham, Alabama 35209. Phone have become members.Offices are local· (205)802-7575. of Sasser & Weathers. Officesare locat ed at 1300 AmSouth Center, Mobile, ed at801 ChurchStreet, Sui te 14, Decatur, Alabama.Phone (334) 405-1300. Burdine, Collier& Burdine announces Alabama35601. The mailing address is the association of Roy Edgar Long, and Tingle, Watson & Bates announces P.0. Box 3043. Decatur 35602-3043. the new firm name is Burdine, Collier. that Mark T. Waggonerhas become an Phone (205) 351-1184. • 206 /JULY 1995 THEALABAMA LAWYER BUILDINGALABAMA'S COURTHOUSES MACON COUNTY COURTHOUSE By SAMUElA. RUMORE,JR. The following co111ti1uesa history of Alabam11'sco1ml11 courlhouses-lheir origillS and some of the people who con lribuled lo their growth. The Alabama la UIJlerpluns lo nm one counly's slory in each is:/1111of Iha magazine. If you hare any pholographs of early or pre sen/ courlhousc,s. please forward /hem lo: Samual A Rumore, Jr .• Miglionico & Rumore. 12.10 Brown Mar.~ Tower. Birmingham, Alabama 35203. MACON COUNTY aeon County was one o( ten new counties created by the Alabama Legislature on December 18, 1832. All of rmthese counties came from former Indian lands - Choctaw. Cherokee, or Creek. MaconCounty formerlybelonged Lo the Creeks who transferred the last of their the ability of local people to govern lional mtel']lrelation that e1Cpandedfed lands east o( the MississippiRiver to the themselves. He (eared a strong central eral power.I le opposedprotective tariffs UnitedStales by a treat)' in I832. government. I lowever,afier lhe Consti and the building o( a navy. He opposed The county was named for Nathaniel tution was ado11ted.he supported the taxation to /und lhe War of 1812. He Macon,a HevolulionaryWar soldier and new government nnd was elected in opposed the Missouri Compro mise long-servingpolitica l leader. Maconwas 1791 lo serve In lhe I louse o( Represen because he felt thnt to acknowledge the born in what is now Warren County, tatives. right or Congressto compromiseo n slav North Carolina, on December 17. 1758. Maconserved continuously in Congress, ery would acknowledge a right to inter He attended Princeton University in either in LheI louseor Senate.for the next fere with states' rights. In summary. NewJersey In I 774 and joined the New 37 years. He was Speaker of the House MaconIs not remembered by historians Jerse)' militia an 1776. In I 777 he from 1800 to 1807 and chaired the as a constructivef orce in Congress. returned to North C..rolin.ito study law. House Foreign RelationsCommittee. He Maconcontinued to seM his state after but in 1780 he reioined the army \\·hen served m the United States Senate from retiring from Congress. first as trustee the British a111cked the southern 1815 to 1828. Dunng his final t\\'O )'ears o( the Universityof North Carolina and colonies. in the Senate . he was President Pro then in 1835, as president o( the North Macon becamt an 1mPOrtantpolitical Tempore.He resignedfrom the Senate in CarolinaConslltutional Convention.He leader in North Carolina. From 1781lo 1828when he reachedage 70. died al his home on June 29, 1837. 1786, he served in lhe North Carolina Maconwas universallyrespected (or his Maconwas popularamong the settlers Senate. In 1788 he joined Lheanti-feder honesty . Economy with lhe puhlic·s in the newly opened Indian lands in alist movement In opposing the adop· moneywas tl1epassion or his career.How Alabama 1vhocame from the Carolinas. lion o( lhe United States Constitution. ever. Macon opposed Federalist policies Georgia,Tennessee, and Virginia. They He was a (erv~nlbeliever in slates' rights: in Congress. I le 01iposedany conslilu- respectedhis long service and his politi- THEALABAMA LAWYER JULY 1995 / 207 cal leanings, including his defense of Cameron. It was identical to the Greek Tuskegee F'emaleCol lege was chartered slave!)' and states' rights, and his posi Revival courthouses built in Chambers by the State of Alabama. This school tion that secessionwas the only remedy County in 1837, Tallapoosa County in was later taken over by U1eMethod ist for usurpation of power by the federal 1839.and RandolphCounty in 1840. Church and became known as the government. The 1832Alabama Legis la Bythe 1850sMacon County had grown AlabamaConference F'ema le College.In ture named one of the ten new counties and thrived due to the richnessof its soil. 1909 the college moved lo Mont in the state "Macon"in his honor. Plantations prospered there. The total gomery. In 1935 its name was changed On January 12, 1833, the Alabama population approached 27,000. Fine again, this lime to Huntingdon College. Legislaturepassed an acl establishing a homes were constructed, including the Thus, Huntingdon, which still thrives three-membercommiss ion which would Varner-Alexander House, commonly today as a private college, can trace its select a site ror the courthouse of Macon known as Grey Columns,which today is roots directly to the college chartered County. The commission was charged one of the largest and most elaborate by the state in Tuskegee in 1854. with locating the seat of justice al or By the mid-19U1century the citizens near the center of the county if practi of Macon County wanted a new court cable or, if not, at the most eligiblepoint house that would reflect the wealth and not exceedingsix miles from the center prestige of the county. Montgomery of the county. The members of the architect Charles C. Ordeman designed commiss ion were General Thomas a new building that was erected in the Woodward.lsaac Rayand John Thomp town square. The cornerstone was laid son. They chose a site on the headwa on June 24, 1853. His design was simi ters of Calebee Creek on an old Indian lar to the 1854 Montgomery County trail near the center of the area. The Courthouse for which he also se,ved as town was laid out In 1833 and named architect. Tuskegee. The style for this third MaconCounty Aswith many Indian names, there are Courthousewas CreekRevival. It included several theories concerning the history a raised portico, reached by paired curv and derivation of the name ''Tuskegee". Gargoylede/ail on lhil courth.ouSt! ing staircases. and four nuted columns. One tradition is that the word comes The cost ,~as$14 ,000. Besidesbeing used from a Creek Indian word ''taskialgi" in MaconCounty, U'lisbasic design was which means "warriors." Another theo imitated in other central Alabamacourt ry is that U1etown was named for a tribe houses, including the TallapoosaCounty - U1e Tuskigis.A third possibilityis that Courthouse at Dadeville, lhe Lowndes the town was named in honor of an Indi County Courthouse at Hayneville, the an town, Taskigi, which was located Butler County Courthouseat Greenville, near Port Toulousein the triangleformed and the Lee CountyCourthouse at Opeli by the Coosa and Tallapoosa rivers. A ka. These courthouses all expressed the final suggestion is that the town was viewthat the place of justice should bea named for a Creek Indian chieftain "temple of democracy" and so they were Tuskegee.At any rate, Tuskegeebecame constructed in the fashion of ancient county seat of Macon County in 1833 Creek temples. and has served continuouslysince as its Al the outbreak of the Civil \Var, only county seat. Tuskegee was the center for trade and The first election of county commis culture in a large county that included sioners took place on the first Monday The 1853 Grl!.e.kRe.viua/ co u,thouse located i,t such towns as Auburn, Union Springs, in March 1833. General Thomas Wood TU.(ltt!gL"f! Notasulga, and Loachapoka. After the ward. a member of the original selec Civil War, Macon County lost territory, tion committee, was among the first ante-bellum homes still standing in the population. wealth. and influence. commissioners elected. He built the first state. It was acquired by the National The Reconstruction legislature or house in the town of Tuskegee. Park Servicein 1975 to serve as a recep 1866 created several new counties. The first ChanceryCourt met in April tion center and headquarters for the Among these were Bullock and Lee. 1833. The initial courthouse was a log Tuskegee Institute National Historic Much of the territ ory used to create cabin-type structure 1vitha dirt floor. It Site. Its front gates were used in the these counties camefrom MaconCoun was also used by the Methodist congre movie' 'Gone With The Wind." ty. In 1870 the population of Macon gation. Also, by the 1850s. Tuskegee had County had declined to less than In 1841 this old log structure was re become a center of educational oppor 18.000.and its area had been reduced to placed by a two-story brick courthouse tunities and culture, especiallyfor young 622 square miles. constructed in the center of the town women. There were 46 public schools in The 1880 census revealed a further square. This courthouse was designed the county and several private schools decline in the populationof MaconCoun by Joshua F. Mitchen and Benjamin H. and colleges. On February 2, 1854, the ty. Yet, despite this problem, the elec- 208 /JULY 1995 THE Al.ASAMALAWYER lion of 1880 set the stage for Tuskegee which continues lo se~-e lhe county, is enl courthouse was completed, the and Macon County to become known quite impressi\oefor a rural county and Grt_ekRevival structure in the square around the \\'Orld. is one of the best preservedtum-of-the was lorn down. The square now serves In 1880. many residents of Macon century courthouses In Alabama. The as a memorial park. County were trying to unseat the two main or southern side of the building The present Macon County Court county legislators. The electJon result contains a six-story central clock tower house was designedby J. W. Goluckeand could not be predicted. These legislators with nanking octagonal turrets. The Companyo f Atlanta who also designed madt a political promise to Le"•is roofs over the tower and turrets are the Chambers County Courthouse of Adams,a black leader. that in return for steep-pitched pyramids. Rounded arch 1899 and the Calhoun County Court the blackvote that }"earthey \\'Ouldsup es predominate in the openings of the house of 1900. Remarkablythe Macon port the establishment of a vocational tower. The structure is brick with gran County structure wascomple ted in 1906 school for black students. The two won ite trim. A special feature of the clock at a cost of only $42,000. ILwas named re-election with the help o( black vot tower is lhe decorat ive granite gar to lhe National Registe r of Misloric ers. and then kept their promise. On goyles localed at each corner. These Places on Nowmber 17, 1978. February12, 1881,Governor Rufus Cobb gargoylesare an artistic combination of Macon Countyhas a unique distinction signed the bill creating the Tuskegee an eagle and a dragon. The Macon in Alabamahistory. In the 1950s.due to Normal and Industrial Institute. The County Courthouse is the only court· civil right$-erahysteria, the county was lnsllt ute opened its doors with 40 stu house in Alabamawith gargoyles. targeted not simply to be reduced as in dents on Ju ly 4, 188l. Through the Since the courth ouse is irregularly 1866, but to be abolished. Pears of a efforts of BookerT. Washin11ton, George shaped, the western side Is totallydiffer black majority taking control of county Washington Carverand others, Tuskegee ent from the southern exposure. The government motivated the legislature Institute helped to transform the South western entrance has a one-story fiat to proposea constitutional amendment through education. The school is now roof portico with rounded arches for the that would alter the boundaries, reduce TuskegeeUni,-ersity. three openings. The entrance is framed the area. or entirely abolish Macon When MaconCounty decidedto build by twin four-storytO\\-ers. Directly abo\-e County based on the proposalof a com a new courthouse in 1905.the style cho the entrance is a gabled dormer match miltee. The committee was composed sen was Richardsonlan llomanesque. ing the height of the twin towers. of senators and representatives from Homnnesque architecturel s a basicarch i The courlho use is located directly Bullock. ~:lmore, Lee, Montgome ry, tectural style dating back almost L.000 northeast of the town squnre. The two Macon. and Tallapoosa co1mties. This years. Its characteristicsInclude round previous courthouses were located in ed arches, barrel ~oauluand thick walls. lhe center or the square.When the pres- 0,,1t1twMonpage212 The style is noted for Its strength and solidity. Between 1880 and 1910. a variation of the Romanesquesty le became quite PROfESSiONAf !NVESTi(jATiVE 5ERViCES fashionable for public buildings in the Uniled States. The style was pOJlUlar ized 0WNEd & MANA(jEd By A by I lenry HobsonRichardson of Boston. His version of Romanesque contained PRACTiCiN(j MEMbER Of THE massiw pyramidalroofs, peaked towers, turrets. and low. rounded Syrian arches AIAbAMA STATE BAR (or porches or other openings. This style Is called Richardsonian Roman esque. The 1905 Macon County Courthouse. CIA, iNC. Samuel A. Rumore , Jr. CO BURN I VESTIGATIVE AGENCY SornuelAAutnore.b I'll a gr1ouo·10ot 1no Un1vor•11yCl Notre Oamo Ind IM Uruvtrt11yot Alabama "THESURVEILIANCE SPECIAUSTS"' Scl,oolc,uw He - .. fco;nd,,g C ORPORATE OffiCES tnWpetlDl'I OIN ~S&a!es.·s 1}12 18THSTREET SOUTH f-vU,,S.Cto,and ii w, p,acbce 1n 81fmlnghQmwith the firm ol M,ghoruc;o& Rumore BiRMiNGHAM,AL }5205 Rumore1orves ea 1he b..ucx,mm111lon0t lo, ltio 1Ott, C11cult,ploeu numt>m,ou, 205/918-0042 FAX/918-0024 THE ALABAMA LAWYER ---- ___,..-==-=-c:111e1-=..---=-c:111C1.:::l!'!'!::'.!!"i=i'!!'!P!!IJU[ I 95/ 209. Cumberland School of Law The Cumberland School of Law of Samford University is indebted to the many Alabama attorneys and judges who contributed their time and expertise to planning and speaking at Hon. William M. Acker, Jr. Birmingham Alan J. Dane Birmingham James P. Alexander Birmingham Richard Eldoo Davis Birmingham Bibb Allen Birmingham Edward A. Dean Mobile LaBella S. Alvis Birmingham Charles L. Denaburg Birmingham Orrin K. Ames, lU Mobile Susan D. Doughton Birmingham Ann Z. Arnold Birmingham Helen Kathryn Downs Birmingham Leslie R. Barineau Birmingham B. Boozer Downs, Jr. Birmingham James C. Barton, Sr. Birmingham J. Richard Duke Birmingham Steven A. Benefield Birmingham John C. Falkenberry Birmingham Lee R. Benton Birmingham Charles W. Gamble Tuscaloosa T. Brad Bishop Birmingham Hon. Ollie L. Garmon, ill Birmingham Duncan B. Blair Birmingham Beth H. Gerwin Birmingham Pamela C. Blalock Birmingham Sen. M. Douglas Ghee Anniston 011ie L. Blan, Jr. Birmingham Walter T. Gilmer, Jr. Mobile H. Hampton Boles Birmingham John D. Gleissner Birmingham R. Michael Booker Birmingham Hon. Paul W. Greene Huntsville Karon 0. Bowdre Birmingham James 0. Haley Birmingham William M. Bowen, Jr. Montgomery Francis H. Hare, Jr. Birmingham Michael A. Bownes Montgomery Samuel H. Heldman Birmingham Gov. Albert P. Brewer Birmingham Stephen D. Heninger Birmingham Richard J. Brockman Birmingham Henry T. Henzel Birmingham Stephen E. Brown Birmingham R. BenjaminHogan , m Birmingham Richard E. Browning Mobile Jack B. Hood Mobile Hon. Jack Caddell Decatur Alex L. Holtsford, Jr. Montgomery Charles F. Carr Birmingham M. Ann Huckstep Birmingham Rhonda Pitts Chambers Birmingham James F. Hughey, Jr. Birmingham Thomas W. Ch.ristian Birmingham Edwin E. Humphreys Birmingham John S. Civils, Jr. Birmingham Patricia E. Ivie Montgomery Charles Tyler Clark Birmingham Alex W. Jackson Montgomery William N. Clark Birmingham Hon. Douglas I. Johnstone Mobile James R. Clifton Andalusia Jasper J. Juliano Birmingham Patricia Clotfelter Birmingham Frances E. King Birmingham Fred L. Coffey, Jr. Huntsville M. Christian King Birmingham Charles D. Cole Birmingham Jeffrey C. Kirby Birmingham John J. Coleman, DI Birmingham John T. Kirk Montgomery William D. Coleman Montgomery John F. Kizer Birmingham Joseph A. Colquitt Tuscaloosa Harold 8. Kushner Birmingham Reggie Copeland, Jr. Mobile Frederick T. Kuykendall, fil Birmingham Deane K. Corliss Birmingham Nina M. Lafleur Birmingham Continuing Legal Education our education seminars during the 1994-95 academic year. We gratefully acknowledge the contnoutions of the following individuals to the success of our CLE programs. Forrest S. Latta Mobile John P. Scott, Jr. Birmingham Sydney Lavender Birmingham ElizabelhH. Shaw Birmingham L. Tennent Lee, Ill Huntsvi.lle Terry A. Sides Montgomery Roben W. Lee, Jr. Birmingham Griffin Sikes, Jr. Montgomery Hon. Hugh Maddox Monigomery Wilbur G. Silberman Birmingham Patrick Mahaney Montgomery Susan J. Silvernail Birmingham Hon. Margaret A. Mahoney Mobile Hon. Kennelh0. Simon Birmingham David H. Marsh Birmingham D. J. Simonetti Birmingham Deborah A. Mattison Birmingham WinfieldJ. Sinclair Birmingham RodneyA . Max Birmingham Hon. James S. Sledge Anniston George F. Maynard Birmingham Deborah Alley Smilh Birmingham BruceJ. McKee Birmingham James Dale Smilh Mobile E. Ann McMahon Birmingham Gary G. Stanko Anniston William H. Mills Birmingham James H. Starnes Birmingham Hon. Tamara 0. Mitchell Birmingham Norman P. Stein Tuscaloosa P. Russel Myles Mobile William B. Stewart Birmingham RebeccaA . Narmore MuscleShoals Charles D. Stewart Birmingham Carol Sue Nelson Birmingham Ted Stuckenschneider Birmingham Hon. Edwin L. Nelson Birmingham Hon. Charles A. Thigpen Montgomery Thomas A. Netlles, IV Tuscaloosa Marshall Timberlake Birmingham F. W. Neumann, Ill Birmingham Steven D. Tipler Birmingham Ralph R. Norman, Ill Montgomery W. Terry Travis Montgomery Lewis W. Page, Jr. Birmingham Michael E. Upchurch Mobile Virginia C. Patterson Birmingham Ray Vaughan Montgomery Gary C. Pears Birmingham Howard P. Wallhall Birmingham E. B. Peebles Ill Mobile Roben C. Walthall Birmingham Hon. Joseph D. Phelps Montgomery Keith Watldns Troy Abner R. Powell, Ill Andalusia Anne P. Wheeler Birmingham Phillip B. Price Huntsville J. Mark White Birmingham James D. Pruett Birmingham John P. Whittington Birmingham Wanda M. Rabren Andalusia Ann K. Wiggins Birmingham L. Drew Redden Birmingham Rohen L. Wiggins,Jr . Birmingham Dnvid P. Rogers Birmingham James C. Wilson, Jr. Birmingham Richard R. Rosenthal Birmingham R. Wayne Wolfe Huntsville Richard P. Rouco Birmingham William C. Wood Birmingham George W. Royer, Jr. Humsville Thomas Woodall Birmingham Frank M. Saller Birmingham Cathy S. Wright Birmingham S. Shay Samples Birmingham ErnestineS. Sapp Tuskegee Alabama 's courthouse s Continuedfrom page209 committee could recommendthe trans fer of all Macon County territory in var ious portions to contiguous counties. On December17 , 1957, the citizensof Alabama, by a t,oo to one majority, approved this proposal, and it became Amendment No. 132 to the Alabama Constitution. The amendment provided that a report of the "abolition" commit tee had to be submitted to the legisla ture by the first Friday in October 1958. The committee met, but could arrive at no recommendation for the legisla ture. The representatives failed to reach any agreement on how to divideup the populat ion and territory of a county where blacks outnumbered whites seven to one. The "abolition" committee soon disbanded. This amendment remained a part of the Alabama Constitution until 1982. Theoretically,the committee. could have been revived to once again consider abolition of the county. On March 2 of that year, the voters of Alabama passed Amendment No. 406 which repealedthe previous amendment. Tragedy struck the Macon County Courthouse on August 2, 1985, when a fire destroyed much of the interior. The county rented a build ing across the street and moved the courts and some officesinto this courthouse annex. The struc tur e had a small, make-shift courtroom with folding chairs. Other county offices were scattered through A uiew of the main or south facing entrance after renouation out town. For approximately two yearsthe coun into 16 bid projects and purchased One day the city of Tuskegee and the ty leaders debatedU1e fate of their court materials directly for each phase. The county of Macon hope to undertake a house. Some argued for a new building county used inmate labor from the Bul joint venture to build a city-county jus while others desired to retain the unique lock County Correctional fac ility al tice center complete with courtrooms ly designedbut damagedold courthouse. Union Springs to further bring down and jail. Due to careful foresight in the finding the funds for any project was a costs. With the use of various cost-sav renovation project, if a new building is problem. Finally, in 1987, plans were ing measures, the project totalled $1.7 ever constructed, the old court facilities initiatedto remodel the old courthouse. million instead of the originally esti al the courthouse can be easily and Construction began in 1989. mated $2.5 million. cost-effectively converted Into county Because of limited resources, the The historic Macon County Court offices. With an eye on the future but Macon County Commission had to be house was rededicated in a ceremony recogn izing its past. Macon County creative in financing and implementing held on Sunday April 7, 1991, almost should be saluted for saving its historic this project Major L. Holland of Tuskegee six years after the destructive fire. Rep courthouse building. • was architect, and Hardaway Construc resentatives from the Governor'soffice, tion Company of Nashville, Tennessee, the supreme court, the Alabamal ..egis The author extends thanks to the was construction manager. However, to lature, the U.S. Congress and Senate, Macon County Commission and its save money in construction, the county other state agencies. and the City of president, frank H. Lee. for providing itself served as its own general contrac Tuskegee were present for the cere information and photographs for use in tor. The county divided the original bid monies. preparing this article. 212 / JULY1995 THE ALABAMALAWYER BOOK REVIEW bg PatrickC. Cooper BusRIDE TO]UST/CE By Fred D. Gray, Sr. red D. Cray'sau tobiography, tional and civil rights cases decided by diction." Those words proved prophetic Bus Ride to Justice, is a the Supreme Court have roots in Ms. becausethe MontgomeryCoun ty District "must read" for students of Pnrks' courageousrefusa l to give up her Allorneysoon dropped the chargefor lack Ill the Civil Rights Movement seat-that "bus ride to justice." of Jurisdiction.In his book.Mr . Cray also and for those interested in the tactical Mr. Cray's rapid rise as a civil rights counters the notion that Judge Johnson maneuvering and legal underpinnings laW}U,though, almost came as briskly was a liberal. activistjurist. pointing out of st'\ BYTOMORROW Palrlck C. Cooper Pn~odoC~•• QllOJI. OfVAIi COIIIIIQO PROB A TE + IN JU NCTIO N + SU PERSEDEAS + REPLEVIN -YlltUW-1-i ----- Karen MichelleAdams WilliamMarshall Gard ner MoniqueDeborah Moyse RandyLee Allen LynetteKay Gay le PatrickGe rald Nelson CindyMiche le Anders MurrayHarlin Gibson.Jr. Janis KnoxNettles Allison Black Anderson DonaldJoe Gilbert CraigA ndrew Parker ThomasCra ig Anderson Fletcher DelmasGreen Bernard DobbieNomberg Carol Jean Athey John Allen Greene AlbertJohn Patterson Sheila Jane Ayers MalvernUlysses Griffin, m CelesteLynn Patton Christopher Alan Bailey Angelina GabrielleMcGehee Crimes AndrewChristopher G. Pettus. Sr. Russell ClydeBalch CalebBrandon Halstead,Jr. GregoryHolly P iner BishopDerrick Blythe Clifton Floyd Hastings Patrick DavidPinkston CarolJ ean Lackey&one AnsleyDa re Head RobertettaJean DavisPriest John WayneBoone DeborahSusan Hensley CarranzaMothershed Pryor WilliamRobert Boulwa re James Roger Hepburn James DarrellReedy GaryDea n Bradshaw MichaelB ray Houston Jodee Loaring Rowe WilliamTerry Bullard,Jr. Jimmy DouglasJacobs DennisLowell Rushi ng TimothyCarst.Jrphen B urgess CliffordWayne Jarrett DeirdreYo ung Russell Yancey NealBurnell MichaelRay Jeffries Louis CooperRutland, Jr. Peter Austin Bush Jennifer LynnJones Joseph Lenn Ryals John Russell Campbell MichelleYvette Jones LynnBruce Sanders VelmaDenese Carr Helen FIO)'d-JonesJoyce HarveyDean Smith Sanford MarkJohn Christensen AbdulKarim Steven Kallon Patricia LeighSansone Rosemari LaliseC laibon Larry WayneKee l Karen CraceAshworth Saulsberry Kori LynnClemen t RoderickSteven King LawrenceCl iffordSchill Cathy Dale HollimanCoggin DeborahGreen Knight John Foster Scroggins RichardMic hael Colbert RoxanneWilson I.avenue Jerry Lee Seemann BrysonKyle Collins Anne•t.1arie\Vatkins La\,·so n WilliamWa lton Sellers John Robert Colvin RichardBrooke Lawson, RodCamero n Shirley CharlesThomas Conway m Harry OwenLee, Jr. DavidWilliam Smith Julia ElizabethBoaz Cooper RichardDa le l,ively Christopher Rhett Smilbem,an Thomas LouisCoppedge GeorgeGregory Locklier KaliaSpears Charles GilbertCrawford, IV TI1omasRalston Long, IV James Larry Stewart DavidSims Crawford MoseWadsworth Stuart. IV Lois GwencttHillestad Dagian RebeccaJ ennalhan Luck GeorgiaAnn MidleLudlum LesterThomas Styron John Albert Daugherty Brantley WalkerLyons BarbaraMurie l MillerSullivan John Judson Davis Hugh Tristram S,vindle Charles LafayetteDay MariaTherese Vines Macksoud DavidLa,V'rence Dean, Sr. Edgar FindlayMaier Craig LamarThomas Patricia Diak Dan LaShaunMalone WilliamBartley Till Sherry Ann WeldonDobbins Frank Timothy Mccollum Lisa DianeBurc h Todd Ann MicheleFalletta Durham St.>ntonH owellMcDonald RobertThomas Treese. Jr. ' MariaKarol ina Dyb l!cb PW!ckU. PmkS1on(19951 and Jolln E. Donl. Cllbm (1995)•nd Judg, Sh>ron P. lK!g!ISan,ont (1994)and Pot>r £n•lrn 119n)l•dmlllee and lalh TH£ ALABAMALAWYER JULY 1995/ 217 < • 1-hchd•Fallttto Durham 119951 ml Tho.,.. Rlbton 1""'11,I\' 11995)and Jodtt1.oat111c R-119951 ml Clwi :,i.lwm U.Cnffin. Ill (1995) ond MumyH Cibson.Jr.ll!l'J51 and Dan.l John A.U.u!Ch Ft!brua,:1/1995 Bar Exam Ptatt:1lir.1 ~nkte,d o/• Number ~tllmgtor exam . . ...•.••...... •. . .•••..•.... 282 Numbfr certifiedlo Supreme C1>urtoi .~labama ...... •••...... 136 Certificationrate .•...... •...... ••••....•...... -18percent Certiflcalion percentages: t:ni~ 218 /J ULY 1995 TM£ALABAMA I.A WYE R John Robtrt Colvin(1995) and John J. Oavis(1995) and Henry0. LouisC. Rutland (1969) ond JudgeCus Colvin,Jr. (19651 Binford(1982) (admillte nnd L. CooperRu tlnnd.Jr . ( 1995) (admiltcc and father) brothcr•in•law) (father ond odmittee) ____ t<,)95 A1'JNUALM~EE ;;;.;;;11~~0 July 19,22 , 1995 Th e Wynfrey Hotel Binningh an1- " .. . striving to keep our business a profession and our p,·ofession a calling in the st1irit of public service." THE ALABAMALAWYER JULY1995 / 219 BAR BRIEFS • The AlabamaAssociation of Legal • Treasurer-Babs DeKeyser.Hon. caretrs have demonstrated outstanding Secn?tariesheld Its annual mttling May MichaelE. McMakcn dedication to the welfart of their com 5-7, 1995 In Tuscaloosa.Alabama and • NaUonalDirector -Susan Tumer. munities and to the highest principles the followingnew officers were installed: Burr & Forman and of the legal profession. • Pruid cnt-Cinny Check.Cabaniss. Establishedin 1955,Fellows encourage Johnston • Tammy Denson of Williams& and support the researchprogram or the • President-elect-Debbie Whilman, Williamsin Tuscaloosa was named American13ar Associnlion. 1995 Member of the Year. MontgomeryCou nty DistrictAttor Adom s, or the flrm of Walker, HIii, ney's Office • Two Alabama attorneys. Phillip E. Adams, Umbach, Meadows & Walton, • Isl Vice-president- Barbara Malone, Adams. Jr. of Opelika and Fred David graduated from Auburn University in Collins. Calloway& Smith Grayof Tuskegee,were recently elected 1965 and the University or Alabama • 2nd \Ike-president-Beverly Lynn. FellOl•'Sof the AmericanBar Foundation. School of Lawin l 96S. lie has servedas Balch & Bingham The Fellowsis an honorary organiza presidentof the LeeCounty Bar Associa • Secretal)'--Nell Yarbrough, tion of attomcys.judges and law teachers tion and lhe AlabamaState Bar.A mem, Schuessler.Sandlin & Thigpen whose professional.public and private brr of the ASAsince 1969,he hasserved on the Howe of Delegatessince 199L He was a municipalJudge for the City of Opelikafrom 19i6 to 1991. Cray, senior partner of the firm of Crny. Langford,Sapp, Davis& McGowan, receivedhis undergraduatedegree from ;\labama Slate University and his law degree from Case Western Reserve Uni versity. He has served as president of the M~con County Bar Association. lie was n member of the Alabama House of Representativesfrom 1970 to 1974, a suite bar commissionerfor the FifthJudicial Circuit in 1983,and present ly serves on the AlabamaAdvisory Com mittee to the CivilRights Commission. • The AmericanCollege oi Trust and Estate Counsel announces that Ralph H. Yeildinghas been elected a F'eJlowof the College.Yeilding practices with the Birmingham firm of Bradley. Arant. Rose and While. • Mississippi\.\llley n~ e hasthe strength and stobllhy of over50 years In the lhle • MnhnlaAsh ley Dickerson,a partner business,c:onsecuuve A+rating; from Standani & Poo,·, und~ie estttniedposi· with the Anchorage. 1\lask.1firm or Dick uonof bdnglhc number oiie tidelllSU!1!1' in both Mlsslss!pp1 ond Alabama. erson & Gibbons, was chosen as one of six recipients of the F'i~hA nnual Mar Withoor suingih and ~nence. we combine lhc ~bihl}' lO solve)'O\lr ~ret Women toughtldc problems wilh a willuw,ess10\\ffi \\1th )'OUIO\l-ards ItalsohJlJons. Brent L.r.~ffid Achievement Bcausrai M~ \'all')·Tole. Fle.~ht) · ISll\J\151 ~ oonctpt. u\ lhcway Award. sponsored by the ABACom missionon Womenin the Profession.Ms. "" dobusmcss. Dickel'50l1,a 1948 admittee to the Alaba· ••• ¥ ma State Bar,was the featuredspeaker at .. .. the state bar's 1994Grande Com'Ocation. • MISSISSIPPI VALLEY TITLE The awardshonor outstandingwomen lawyerswho hove achieved professional • ... ,. *•INSURANCE COMPANY excellence and who have contributed to the success of women throughout the Tl1e Flexibi111y You Need. Tl1e Stability You Tnist. profession. The ceremony will be held JIH1111bl9> Keith B. Norman, executive director goal is that some program will enhance the personal or pro K,ith ha$ beenthe executi\-tdirector of the bar since Septem fessionallife of Alabamapractitioners in a practicalway. ber I, 1994.With this new position, Keithwears three hats. As As director of programs,his responsibnitiesare multi-faceted executivedirector. Keith's duties and respons,bililiesinclude and changingin viewof U,e ever-changing legal and socialenvi overseeingadmissio ns and licensingand workingwith the gen mnmenLFor example,E d is responsible for directing the MCLE eral counsel's oflice on such matters as coordinnling ongoing program.At present. this is u,emost lime-consuming aspect of disciplinaryiss ues affectinglhe bar. !,;d'sJob. In addition.he servesas lhe liaisonand administrative In addition to his resparuibililiesas executivedirector, Keith supp()rtperson betweenthe state bar and the variouscommit is an electedofficer of lhe boardof barcommissioners . He serves tees and task forces of the bar. He is also lm'Ol\'l!din ~ future as secretary 10 the board or bar commissioners.and his duties or specialization as administrator of the legal specialization includeoverseeing everything relate{! to the board, such as pro board, a 12-memberboard appointedby the board or bar com vidil1JInotices to the commissioners.organ izing the agenda for missioners,which bec.imeeffective January 1994lo approve the meetings, taking minutes of Lhemeetings, having those min cerllfic.ition or attorneys wllhln such current speclalized areas utes transcribedand distributed. insuring that the board's Poli· such as bankruptcylaw, and civiland criminal trial ad\l\lcacy. des are implemented.handling the electoral functioMby making Ed is a native or Montgomery.H e is married and has two surt lhat members are properlyelected; notifying the judicial daughters. one who is a sophomore at Aubum Universityand circuits when a vacancy is coming up; and seeing that the var· another who is a senior at Trinity PresbyterianSchool. ious commilteeappainlrnents are made. Thethird hat that Keithwears Is the "associallonal" hat In lhis Diane Weldon, administrative assistant c.ipacityK eith workswith other state agenciesand the Legisla for programs ture in matters concerning the bar (which is a state agency)and !)lane has been with the bar since 1978.when she came as a maintains nscal policies that are consistent with the Finance student workeras part of a business officeeducation cou rse dur· Department's and Examiner or Public Accounts· palicies and Ing high school. In 1982.she becamea full-time staff member procedures. and has been with the CLE program since its Inception.Her Prior to becoming executiwdirector, Keith sel\-ed as the state job entails handling alt correspondence · relating to CLE. bar'$ director of programs for six years. Keithworked with the reviewingproposed CLE programs, keeping a running list of lawfirm or Balch& Binghamin Montgomerybefore joining the all programs and sponsors. maintaining all CI.E records and stale bar staff. files.and workingwith the DisciplinaryCommission cert ifying l(elth Is married to Teresa Norman,an attorney,who servesas attorneys who fail to get their required annual CLE hours. the staffattorney for JLL~ticeRalph Cookor lhe Alabam.1Supreme Diane also is involved with ,,'Orkingwith the various commit· Court. Theyhave four children. tees, task forcesand sectionsof lhe bar. A new area with which she is assisting is the development of legal specialization in Margaret Boone , administrative assistant Alabama. Milf83rethas been with the bar for 17 years. Her main respon sibilitiesinclude being secretary t o the executivedirector; assist Heidi Alves, programs sec retary ing in the preparation of all annual meetings. commissioners· I lcidi,a nativeof Manhattan, Kansas,has been wlth the bar as meellng.sand commissioners'e lections;and maintainingrecords the programssecretary since May 1994.H eidi attended Kansas and personnelfiles. State Universitywhere she receivedher bacheloror science in Margaretis familiarwith manyaspects of the bar bec.iuseshe mana~ment. Prior to that, she was stationed at Port Jackson, has workedas the receptionist.as the lawyerreferral s«retaJ)' South Carolina.Heidl has a daughterwho is one and a half years and as the bookkeeper. old. Margaretis a nativeor Prattvillewhere she currently liveswith As programs secretary, Heidi"sduties include keeping track her husband. They have three sons and five grandchildren. or lhe differentsections or the bar and the membersof those sec tions, handling the committee and task forcemailings, en tering Edward M. Patterson, director of programs approvedCLE programs into the computer system. and main Ed Joined the state bar in October 1994as the director of pro taining and updating the transcripts indicating CLEcredits to grams. I le has had a varied past Includingclerking with Justice be given to lawyers. Hugh Maddoxfor l\\'Oyears. \\'Orking ,,ith the bar (or (our anda hal( years as lhe first assistant generalcounsel , and 14years in Susan H. Andres , director of communications pnvatepractice including with the Montgomerylaw nrm or Hill, & public information Mill,Ca rter. F'ranco,Cole & Black.and as a sole practitioner. Susan joined the bar In No\'ember1994 In the newlycreated Ed enjoys proactive management and the challenge or pro positionor director or communications and publicin formation. viding expanded services programs to the membership. Mis Susan'sjob focuseson both outreachand inreachprograms. Out- THI,;ALABA MALAWYER JULY1995 1221 reach programsinvolve estab lishing the state bar as the central degree in political science from Auburn Universityal Mont resourcefor obtainingand distributingaccurate information re gomeryand in 1993 she receivedher master's degree in public garding the legal profession;establishing media contacts; and administration from AUM.You may have noticed Christie's publicizingmajor bar activities,such as the Citizen's Confer new last name; she married last month. ence to be held this year and other bar programs. such as the Kelly H. Carden , membership assistant Alternate Dispute Resolution Center, IOLTAgran ts and the VolunteerLawyers Program. Kellyhas beenwith the bar since January 1994and she assists with all matters relating to membership.This includesprocess Aprimary aspect of the inreachprogram is the ASB.. Roadshow ing the occupationaland speciallicenses, ad ministeringpro hac '95.'' With other state bar staff members,Susan is traveling to vice applications and maintaining the membershipfiles. local bar associationsin the state, presentingan overviewof the bar's long-range plans. This is also an opportunity to receive Kellyis originallyfrom Covington, Louisiana.She attended LouisianaState University.She and her husbandcurrent ly reside input from the local bars on concernsand areas to be addressed in Montgomeryw ith their son, and are expectingano ther child in the future. in November. A major project for 1995.in conjunction with The Alabama Lawyer editorialboard . is the publicationof a newsletter. Dorothy D. Johnson, director of admissions Beforecoming to the bar, Susan servedas the executive direc Dorothyhas beenwith the state bar for three years.Dorothy 's tor of the ChattanoogaBar Association. In addition to her expe duties includescreening bar applications, reviewinglaw student rience in Tennessee,Susan managedthe AlabamaRadio Network registration applications.coord inating the bar examinationwith in Birmingham, and she and her husband ownedand operated the boardof bar examiners, administering the bar examination, a radio station in Arkansas. They are the parents of a daughter and scheduling/attending Character and Pitness Committee and a son. hearingsfor student and bar applicants. Dorothy and her husband, both nativesof Montgomery, and Margaret L. Murphy, publications director their two children returned home when her husband retired Margarethas been with the state bar for ten and a half years from the Navy. Dorothy receivedan accounting degree from as publications director. She servesas the managing editor of AlabamaState University. The AlabamaLawyer and theA/abamaBar Direc/ory,and works Judy Keegan , director, Alabama Center for Dis • with those two committees to produce the bimonthly journal pute Resolution and annual directory.I n addition to editing these two publica tions, Margaret is responsible for all the various bookkeeping, Judy Keeganbecame Lhe director of the AlabamaCenter for advertisingand subscription duties related to the two bar pub- DisputeResolution in the fall of 1994.She maintains educa· tional and resource materialsand a roster of mediatorsfor use 1i cations. throughout the state court system,and works lo coordinateall Margaret,a native of Montgomery,is married and has two sons. She attended Brenau Collegein Gainesville, Georgia and alternative dispute resolution programs in the State of Alaba· ma. The Center operates under the supervisionof the Alabama receivedher degree in communicationsfrom Auburn Univer Supreme Court Commissionon Dispute Resolutionand in sity at Montgomery. conjunction with the AlabamaStale Bar Committeeon Alter native Methodsor DisputeResolution. Linda F. Smith, communications assistant Judy's main duties include providing support to local bar Lindaworks full -timefor the Communications& PublicInforma associationADR commi ttees; assisting with the presentation tion departmentas a communications assistanLPrevious ly. she of ADRseminars; maintaining stat istical data to evaluatethe dividedher responsibilitiesbetween the VolunteerLawyers Pro effectivenessof ADRprograms; assisting state agenciesin gram and The Alabamalawyer. Beforejoining the state bar staff. implementing ADRconcepts in the administrativeprocess: she workedas an administrativesecretary at AuburnUniversity at and promotingconflict reso lution programsin the courts. Montgomeryand WashingtonUniversity in St. Louis,Missouri. schools and neighborhoods. Linda is a native of Savannah.Ceorgia . She has a certificate Judy. a native of Florida,received her law degree from as a business stenographer/word processorprogrammer and has Catholic University in 1986. She is married and livesin Mont obtained her certificateas a legal secretary.She attended Arm gomery. strong State Collegein Savannah. Tracy Daniel , Alabama Law Foundation , Inc. Christie Tarantino Freeman, membership ser executive director vices director Althoughnot technicallypart or the state bar staff.Tracy is the Christie has been with the state bar for two years. She is the executivedirector of the Alabama Law Poundation, Inc. The membershipserv ices director and her job responsibilitiesinclude AlabamaLaw Foundationis houseda t the bar's officesin Mont issuinglicenses, collecting fees, maintaining the memberrecords. gomery.The foundationruns the IOLTAprogram and administers handling pro hac vice applicationsand collecting the applica various scholarships,including the l Margaret (Maggie) Stuller , graphics arts director Maggiebas been with the bar for ten yearsin the graphicsarts department.where she is responsiblefor running the in-house print shop. This includes offset printing of the AlabamaBar Reporter.envelopes. stationary and other forms.She also helps In developingand typesettingthe variousrorms, pamphlets and memoswhich are printed in-house. Maggieattended John PattersonTechnical Colleg e for graph ic arts in Montgomery. Prior to that she ser--edin the Air Force (or fouryears at MaxwellAir force Base.She is a nativeor Oregon, Oh,o whereshe graduatedfrom Cardinal Stritch HighSchool. Katherine C. Creamer, Lawyer Referral Service J. Llt1r/oF . Smith. 2. Dorotl1J1John.son , 3. Nttf{JaM I.. Murphy• ./. Kim Ellis. S. director Christie T,mmtino Fn,,,rnmt.&. BonnieNainot. 7. J.. Gilbt:rt Kendri ABICLE proudly presents ...... Alabama Business Corporation Law Guide (1995) by James C. Wilson, Jr. Your Guide to the New Alabama Business Corporations Act Effective January l, l 995 Topics covered includ e: Fonnation of Corporations Corporate Operations Send me _ copies al S59.00 each ror o 101111or S,_ _ _ Merger; Share Exchange ToOrdrr Mall to: ADICLE. llot 370384 Sale of Assets T.,..ioo.., AL 35481--0384 Dissolutfoo Pboae: J400-Q 7-451" or10S.34M1JO Report & Fees Fu: l05-34J.1072 Foreign Corporations Close Corporation Special Problems & Addra••------Certain Tax Considerations Clly·------Forms included Sta1,.Zlp, ______,______ fl Chttk tndowd p.ay1ble ton~ UnlYutlty or A1:1b1ma Get yo11rco py now from: 0 VISA DM .. 1.,Card DDilcov • Box 870384 • A1uborlltc1Slcn11u~------• Tuscaloosa, AL 35487 • • l-800-627-6524 • THEALAB AMALAWYER JULY 1995 / 225 I-OPPORTUNITIES The following in-state programs have bee11approved for credit by the Alabama Mandatory CLE Commis sion. However, infom1atio11is availablefree of charge 011over 4,500 approcedprograms 11ationwide identified by locat/011date or specialty area. Co11tactthe /lfCLE Commission office at (334) 269-1515, or 1-800-354-6154, and a complete CLEcale11dar will be mailed to you. MASTEIUNG REAL ESTATE 18 Tuesday JULY TITLES ANO TITLE lNSURANCE LIMITED LIABILITY CO~lPANl ES: Mobile.Admira l Semmes THE ENTITY OF CHOICE 10 Monday NationalBusiness I nstitute, Inc. Birmingham,H arbert Center COBRA COMPLIANCE Credits:6.0 Cost:$149 NationalBusiness I nstitute. Inc. Birmingham,Holiday Inn Redmon! (715)835-8525 Credits:6.0 Cost:$149 A.E.Roberts Co. (715)835-8525 Crtdits:5.5 Cost S260 DEFENDING WRONGFUL (80014S6-4S8S DISCHARGECLAINS UNDER 19-22 Al.ADAN;\ LAW A.~NUALMEETING 11 Tuesday Birmingham.Harbert Center Birmingham.Wynfrey Hotel SECTION 125 PLANS NationalBusiness I nstitute, Inc. AlabamaSlate Bar Birmingham,Holiday Inn Redmont Credits:6.0 Cost:Sl49 (334) 269-1515 A.E.Roberts Co. (7I 5) 835-8525 Credlls:3.8 Cost:SJ45 21 Friday (800) 486-4585 WORKERSCO MPENSATION IN 12 Wednesday ALA(li\J\IA MASTERINGREAL ESTATE Mobile TITLES ANO TJTLE INSURANCE LormanBusiness Ce nter. Inc. Montgomery,Madison H otel Credits:6.0 Cost:S 159 National llusiness Institute,I nc. (7151833-3940 AUTOMOTIVE Credits:6.0 CostSl49 (715)835-8525 RELATED 27 Thursday INSURAl'liCE LAW LITIGATION? DEFENDINGWRONGFUL Birmingham DISCHARGEC LAIMS UNDER LormanBusiness Center. Inc. ALABAMALAW Credits:6.0 Cost:S 159 Automotive Consultant Huntsville,Marriott (715) 833--39-10 and Expert Witness National Business Institute. Inc. Credits: 6.0 Cost:S 149 (715)835,8525 AUGUST Charles Reynolds 13 Thursday 4 Friday 40+ years expe rience ALABA~WFEOERALF IDUCIARY fNTROOUl..'TORYARBrTRATOR INCOMETAX WORKSHOP TRAINING in all phases of the Birmingham Birmingham autom obile industry ProressionalEducation Systems. Inc. AmericanAtbitration Association Credits:6.7 Cost: S149 Credits:6.3 Cost:S75 (800) 826•7155 (404) 325·0101 Phone 970-6010 14 Friday 9-11 One Perimcu:r1'11 rk South AI.ABAMNFEOERALFIDUC1ARY MEDIATORTRAI NING Suite IOON fNCOMETAX WORKSHOP WORKSHOP Oirminghnm.A labama35243 Mobile Montgomery Proressional EducationSys tems. Inc. American Arbitration Association Credits:G. 7 Cost: $149 Credits: 20.0 Cost: S600 (800)826-7 155 (404) 325,0101 226/JULY 1995 THE ALABAMA LAWYER OPINIONSOF THE GENERALCOUNSEL By ROBERTW NORRIS, generalcounsel UESTION : I low must I proceedin properlyrepresenting my client? ThroughLegal Serv ices CorporationI haveagree d This is, of course, urgentbecause a trial date is coming up In a to representan indigent individual in a petition to fewweeks and I am furtherconcerned fo r myclie nt's well being." modifyhis divorcedecree t o lenninateor reducehis mchild support since he is now unemployed. He quit his job with a nen.'OUSbreakdown and hasbeen hospital N ~~:~ Rulesof ProfessionalConduct allow iztd twicefor suicideattempts. I le has stoppedseeking ps}'Ch o you to seek appointment of a guardian for your logicalc ounselingbecause he is scared of indigent health c.,re client, or to take any other protectiveaction if you systemsand has feelingsof paranoiaabout being watchedand Dreasonably believe that your client cannot adequatelyact in his or imresllgated. It has now come to my attention that, in fact, own interest. l'urther, the rules allow you to disclosesuch con there is an ongoing investigation about his alleged sexual fidential informationas may be required to adequately repre abuse of one of his children two years ago. He has not been sent your client and advanceyour client's interest. allowedvisitation with his children in over a year pursuant to Rule 1.14,Alabama Rules of ProfessionalConduct. states ns tenns in the divorcedecree for this very reason. rollows: Everytime I talk to him about any facetof his case he has a "Rule 1J4 ClientUnder A Disability complete emotional breakdown. Ht cannot handle any stress (a) Whena client's ability to make adequately considered right now. I cannot convincehim to seek psychologicalcoun decisions in connection with the representation is selingbecause of his fearof what might be revealed. impaired, whether because of minority, mental dis He Is so unstable.I do not believel can proceedwith the peti ability or for some other reason, the lawyers hall, as tion to modify.because I will nol be able to gel him through a far as reasonably possible, maintain a normal client· court proceeding or even the discoverynecessary t o prove his lawyerre lationshipwith the client. case. He has no immediate fomilythat I can call upon for help. l have been approachedby opposingcounsel (who' must rep (b) A lawyer mayseek the appointmentof a guardianor take resent hi5client , the ex-wife,who will not consent to a tempo other protectiveac tion with respect to a c)ient, only rary termination of the court ordered child support) that he when the lawyerreasonably believes that the client "'Ouldbe willing to allow an in-chamberspresentation to the cannot adequatelyact in the client's°'"" interest.• judge about our dilemma. If I do so I will be divulgingto the The Commentportion of Rule 1.14takes note of the foct that judge that the man hasa serious emotional problem that the disclosure of your client's disabilitycould adverselyaffect his judge might want me 10 establishor he might even order psy interest. The Commentdirects that the lawyermay seek guid chologicalt esting to see if my client can adequatelyassist me ance from an appropriate diagnosticianin furtherance of the with the case. In either event, If the man goes to any counselor client's best interest. further evidencewou ld be revealed about his serious feelingsor The issue whichyou focerequires consideration of the oblig guilt and remorsewhich could be used against him in a crimi ation of confidentiality, but also requires that you assessthe situ· nal investigation. at ion and make a determinationas what you feel\\ 'Ouldbe best. l cannot counsel 1\Tithmy client as to which course to lake under the totalityof the circumstances,for your client's inter becausehe cannot deal with confiictwithout an emotionalbreak- est. ln R0-90-67.the DisciplinaryCommission stated that Rule 00\\TIand I feel this could jeoparchtt his life (i.e. another sui 1.14• ... IRJecognizesthat a laW>·ermay, on occasionbest serve cide attempt and/or becausehe is incapableof malting rational a client by takingaction that, on first blush, might appear to be decisions). On the other hand I cannot leavehim without relief adverseto the client." from the decree of divorcebecause the arrearages wouldjust In R0-95-03. the DisciplinaryCommis sion reasoned that a keep adding up al S9ll.56 per month. (He wasr onnerly employed lawyerco nfrontedwith such a dilemmamu st determine what is al a very good wagewo rking in an intensive care unit at a local in the best interesto r the client based0 11the lawyer's analysisor hospitalwhich caused such a high child support award). all aspectsof the situation. Includingo pinionsof medicalex perts. I am convincedm y client's emotionalinstability is real and I The Commission further stated: have uperience and training to make that judgment "Much of the burden of this decision is placedon the NOTI CE TO SHOW CAUSE Notice ls hereby given to Timothy Patrick McMahon of Foley. Alabama that he mus1 respond to discipllnaiy file ASS 95.45 within 30 (thirty) days from the date of this publication (July 18, 1995). Failure to respond shall result In fur ther action by the Office or General Counsel. (ASS No, 95-4'5) THf:ALABAMA LAWYER JULY1995 1227 lawyer who must keep foremost in his mind the Finally. Rule l.6, AlabamaRu les of ProfessionalCond uct, deals increased standard of responsibilitywhen dealing with a with "confidentialityof information''.Subsection (bl of Rule 1.6 disabledcl ient. He must assessall aspects of the situation, allowsdisclosure of information by a lawyerwhich is otherwise including expert medical opinions, balancing the client's confidential if the lawyerreasonab ly believesdisclosure is nec ability to communicate and to appreciate the serious essary to prevent the client from committing a criminal act decisions to be made. If the lawyer has doubts, he should which the lawyerbelieves is likely to result in imminent deaU1 resol,,e thosedoubts in a manner U,at best serveshis client. or substantial bodilyharm. The Comment provisionto Rule 1.6 The lawyer should also appreciate the Court"s increased allowsthat U1elawyer has professionaldiscretion to reveal infor concern in matters involvinglawyers and their represen mation in order to prevent such consequences. Therefore, if tation of incompetent clients. 'The normal limitations on you determine that the best interest of your client would be a lawyer's self-enrichment at the expense of a clienl are served by making disclosurelo the court of your client's condi· applied with enhanced strictness when the client is a tion, and the possibility that he might harm himself, and that child or othenvise not capable of making fully informed protective measures should be taken to prevent such harm, the and ,,oluntarydecisions .'· Wolfram,supra , p. 159. Rule would allow such. In conjunction with Rule 1.14, if you Maza.rdand Modes,in their treatise The laUJof lawyering , deal make this determination. then you could seek appointment of with Rule 1.14 and give an illustrative case wherein a lawyeris legalrepresentative for your client to further protect your client's representinga criminaldefendant w ith diminishedcapacity. Haz interest. ard and Hodes determined that the lawyeracts properly in urg There is no definitivestanda rd which can be applied In such ing his client, who has diminished c.,pacity, Loaccept a plea a situation lo guarantee the best result. The rules are fashioned bargain offeredby the prosecutionand to waive a possibleinsan lo allow the lawyer to analyze the client's emotional stale, in ity defense, even U1oughit would mean a conviction on Lhe the interest lo be advancedby the lawyeron behalf of the client, client's record and a short jail term. Hazard and Hodes con and then pursue whatever action the lawyerdeems best under clude that the lawyer may judge that his client's long-term obviously difficult circumstances.Once lhe lawyer has determined best interest would be best servedby acceptinga short jail term what he feels to be U1e proper course of action to best serve his rather than a determinant stay in a mental institution. Hazard client, the rules all ow the lawyer to do what is necessary to and Hodes feel that in close cases, the lawyer"cannot be disci advancethe interest or the client. while, at the same time, insur plined for any action thal has a reasonable basis and arguably ing protection of the client and his well-being. • is in his client's best interests". Section 1.14:201 IR0-95-061 ALABAMA DIVORCE, ALIMONY AND CBJLD CUSTODY HORNBOOK TBIRDEDmON by Penny A. Davis REORGANIZED FOR and FORMS CONVENIENT QUICK Robert L. McCurlcy, Jr. REFERENCE Over 175 pages of forms are conveniently organized with the busy Alabama Divorce, Alimony and Child lawyer in mind. Among them are new Custody Hombook, Third Edition, is New Edition of the Leading forms on posinuptial agreements and the most comprehensive book on Reference relied upon by uncontested divorces. Several forms Alabama divorce law available. Il has the Alabama Bench and have been revised, including the client been reorganized into 42 chapters, divorce coatract, agreement in taking the practitioner through each Bar for over ten years. contemplation oJdiv orce and property step of the divorce proeess. settlement LAWYERS EDUCATIONAL PRESS Also Available: LAW OFFICE PRACTICE DESKBOOK, Sixth Post Office Box 1287 Edition with supplementat $67.80 ($60.00 plus $7.80, tax, postageand Tuscaloosa, AL 35486 handling . 1994 Pocket Parts of tbe Law Office Practice Dcskbook, S23 .00 each ($20 .00 plus $3.00 tax, postage and handling). Please send me __ copies of ALABAMA UIVORCE, ALIMONY AND CBILD CUSTODY liORNBOOK, Third Edition, at S79.40 each ($70.00 plus $9.40 tax, postage and handling). All orders must be PREPAID. Make checks payable to LAWYERS EDUCATIONAL PRESS. If not satisfied you may return the book within 10 days for a full refund. 228 / JULY 1995 THE ALABAMALAWYER LEGISLATIVEWRAP-UP By ROBERT l. McCURLEY,JR. ver 1,100 bills have been new revised 1>artnershipAct. The com o( the partnership dependent upon the introduced in the Legisla mittee met for the firsttime In November nling or the statement. However, the ture. The Alabama Law 1993and establishedthree subcommit statement, if filed,has an impact upon a Institute has presented to teesas follO\,-s: third party dealingwith the partnership. mthe Legislature eight of these bills Nonetheless.a limitation upon a part Creation/Property- Cordon Rosen; which are the most evH presented in Governance/Liability- BobJohnson; ner·s authority does not affectany third any one legislative session. Pending partywho does not knO\vabo ut the state and before the Legislature are Unincorpo• ment, except as to real estate transac rated Nonprofit Associations (see Dissolution, Conversions.Mergers - tions. If there hasbeen some limitation November 1994 Alabama Lawver); John Lyle as to real estate transactionsthat are med revised Articles 3 & 4 of the Uniform Although the UPAretains the basichis- In the records office,then a third party Commercial Code (see March 1995 dealingwith that partner is held to knO\,• Alabama lawyer) ; and four bills con !>ft hat limitation. cerning family law (see May 1995 The draft contains articles on: Nature Alabama lawyer). These bills and their of the Partnership:Relations of Partners sponsorsare as fol10\\'S; to Persons Dealing with Partnership; RevisedArticles 3 & 4 Relationsof Partners to Each Other and RepresentativeHill - HB llO the Partnership;Transfers and Creditors Senate Windom - SB 237 of Partners; Partner's Disassociation; Partner's Dissolution When Business UnincorporatedNonprofit Associations Nol Wound Up;Winding Up a Business: Representative Caines- HB 218 and Conversions. ~nator Chtt - SB 204 Additionally.a separate committee of 30-DayCooling orr Before Divorce lawyers,many or whom helpeddraft the RepresentativeGuin - HB 168 Umiled Liability CompanyAcl. drafted Senator Bailey- SB 125 a Limited Liability PartnershipArticle to LegalSeparation add lo the UPA.Because about half the RepresentativeBlack - HB 108 states havealready passed a LLPAct and ~nator Hale- SB 210 much interest has been expressedthat Alabamashould also have LLPs as an RetirementBenefits Part of Property alternate entily, it has been added to Settlement torical character of a partnership, there the Revised UniformPartne rship Act. i~epresmtalivePete los - HB 208 have been some changes lo adapt lo the Senator Lindsey- SB 218 way business is currenlly done and is Rev ised Article 8 of the Joint Custody exp«ted to be done in the next century. Uniform Commercial Code RepresentativeHawk- HB 156 Under the UPAthe partnership formed In late 1992.a committeewas formed Senator Bedford- SB 280 is an entity and not an aggregateof indi to study revisionslo Article8 or the Uni viduals. The UPAdoes not require filing form Commercial Code.T his committee Partnership a certificateto form a partnership. pre was chaired by E.B. Peebles of Mobile A committee of the Institute chaired serving availability of the partnership by Fred Daniels of Birmingham with fonn or organization to both large and Reporter Professor Tom Jones or the small e_ntities.It does, however.permit RobertL Universityof AlabamaSchool or Lawhas the filing of a statement of partnership McCurl ey. Jr. worked for several years on this new acL Aoben L McCurloy,Jr authority which may be used to limit ls lhe 1'«ecl<> THEAl.ADA.MA LAWYER JULY1995 / 229 with Rep0rterProfessor H owardWalthall TransferAct, adopted inNaba .ma in 1931. investor is an individual or an institu· of CumberlandSchoo l or Law. In 1977a The original Article 8. like the earlier tional investor. such as a pension trust revisedArticle of lhe UniformCommer· UniformStock TransferAct, is based on or insurance company. the investor's cialCode was promulg;ited by the Nation the assumption that the ownership of ownership of investment securities is al Conference or Commissioners on securities is evidencedby possessionof typically evidenced by bookkeeping Uniform Stale Laws and the American physical certificates, and that transfers entries on a securities account rnajn Law Institute. Although 48 stales have of Stturities are effectedby the delivery tained by the broker-dealer or other enactedthe 1977Revised Article 8. Alaba o( the certificates. It assumes, in short, custodianof its investments,rather than ma is still followingthe pre-1977 ver a ·paper-based"system for the ownership by the physical Possession of tangible sion.A newlyrevised Article 8 wasadopted and transfer of securities. ln the 1960s, certificates. by the National Conferenceor Commis however, securities markets and their However.neither the originalArticle 8 sioners and the Council of the American participant nrms encountered difficulty nor 1978 version of Article8 dealt com Law Institute. The committee reviewed in dealing with a high volume of securi prehensively with the commercial law the current Alabamas tatutory and case ties trddingwh en requiredt o settle trades issues Involved in holding and transfer, law in conjunclion with the proposed through lhe physicaldelivery of certifi ring securities held in Lhe indirect hold changesto RevisedArticle 8. Severalsub cates. In response to this problem, often ing system,or with the use of investment committeeshave been formed to insure referred to as the "paperwork crunch" securities soheld as collateral for loans. an indeplh reviewor each area. problem. state corporation codes were Accordingly. the sponsors of the Uni· Article 8 of the Uniform Commercial amended lo permit the issuance of form Commercial Code-the American Code providesthe commerciallaw rules "uncertificated securities" and in 1978 Law Institute and the National Conrer applicableto investment securities. The the sponsoringbodies or the ucc ID pro ence of Commissionerson UniformState OfficialComment to the first section of viderules for the holdingand conveyance Laws-promulgated in 1994 this revi Alabama's present version of Article 8 of ·uncertificated securities." The 1978 sion of Artltle 8. It includes a new Part notes, the article is neither a Blue Sky Amendments to Article 8. which also 5. entitled "Security Entitlements" the lawnor a corporationscode, insteadplay moved the rules dealing with security purpose or which is to provide the com· ing the role of a negoLiable instruments interests in investment securities from mercial law framework for the holding law for Investment securities. Related Article 9 lo Article8, were never adopt and transfer or lntertsts in investment provisions of Article 9 deal with secured ed in Alabama. securities held in the Indirect holding transactions Involvingi nvestment secu· As il turned out. "uncertificatedsecu system. It also contains amendments to rities. rities" did not emerge as the solution to Article 9 dealing with the use of such The presentAlabama version of Article the papenvork crunch. Instead there interests as collateral for loans. Since 8 was enacted as part of Alabama'sinitial developeda system or indirect holding Alabamadid not adopt Lhe l 978 version adoption of the Uniform Commercial of securities, under which "jumbo cer of Article 8, this revision also provides Code in 1965. AlabamaActs 1965, No. t.incates" are issued to a depositoryinsti for lhe nrst time in Alabamarules pro 549. It was based up0n the UCC'sorigi tution. The DepositoryTrust Company, viding for uncert1ficatedsecurities. nal Article 8, drafted in the 1940s and which holds the securities for its mem The annual meeting of the Alabama t 950sand appl'O\-edby the AmericanLa w ber broker-dealers and banks, who in Law Institute\\ill be heldat 4 p.rn. Thurs Institute and the National Conference tum hold th• securitieson behalfof their day, July 20. 1995 during the Alabama of Commissioners on Uniform State customers. For participants in the indi State Bar Annual Meeting at the Wyn Law-the sponsoring bodies or the Uni rect holding system, trades are effected freyMotel in Birmingham. form Commercial Code-as part of the by bookkeepingentries on the books of For further information. contact Bob 1962Official T ext of the UCC.The origi the DePosltoryTrust Company and on Mccurley, AlabamaLaw Institute, P.O. nal Article 8. which became law in Ala the books or member banks and broker Box 1425. Tuscaloosa, Alabama 35486, bama effective midnight, December 31, -dealers. rather Lhanth rough the deliv or call (205) 348-7 4 11, i'AX (205) 1966. superseded the Uniform Stock ery of physical c.erlincates. Whether an 348-8411. • TELEPHONE FACSIMILE RichardWilson & Associates (ZOS)JZS.9111 (ZOS)326-2316 Registered Professional ANNA LEE GlATilNA Court Reporters ATIOltNEY • M&\IBl:l! Of AI.All,\\IA !WI ~INCE 1987 Anne I.« Omnn>. P.C. 804 S. Perry Street ~ Pb:> Build•na•• Mocnolt.:1Offlu Pork Monlgomery, Alabama 36104 Su1tcll8 · 2112Ekvtmh Avtnu 264-6433 RISEAJI.CH• 811.IUWRm!li'O • WESJUW • ASSISTANCEl?rrtCA!i[ PkEPARATION .,.._ ...... -..,1_ .... ,....._,._ ...... ,11,,J _ ___, ...... i..,1:_ · 230 /JULY 1995 THE ALABAMALAWYER FraudulentSuppression's DutyToDisclose - Has Exception Swallowed the Rule?~ bv MadelineH. Haikala \~~~ he Alabama Supreme Court consistently has held that a plaintiff cannot prevail on a fraudulent suppression T claim unless he can proveby sufficientevidence that the defendant had a duty to disclose material facts to him. Until recently,unless a defendant undertook to advise or counsel a plaintiff.the Court was reluctant to recognizea duty to disclose. In the past year, however. the Court has recast the circum stances under which a duty to disclosemay arise. This article imatelycause d the plaintirrs injury. McCOlllml, 631 So. 2d at will reviewthe pre~entiaJ backgroundagainst which the tort 846-47 (citing Crou:derv. MemorJJHill Gardens.In c.. 516 So. has evol,-edand will examine recent developmentsregarding 2d 602. 604-05(Ala. 1987)). Finally, absent acti\-econcealment, the circumstancesunder which the Court now will recognizea a plaintiffmust beal>le lo provethat the defendant had a duty duty to disclose. Civen the new parameters of a duty lo dis to communicatea materialfact to the him. "Mere silence is not close, the article also suggests a number of defenses which fraudulent in the absence of a duty lo disclose." Dodd.626 So. should haveapp lication to the tort. ::=.. 2d at 1293; Hardy, 585 So. 2d at 32. Much of the litigat!onconc erning fraudulentsuppression per H isto rical bac kgr ound of th e t ort of Lainsto the scopeof a defendant'sduty to disclose.A duty to dis fra udulent suppr ess ion '~ close maybe imp0std upon a defendanteither (I) becauseor a In Jordan11. Pickell, 78 Ala.331 (1884),an earlycase regarding confidential relationship, (2) because the plaintiff requested fraudulent suppression,the AlabamaSupreme Court opined tha t: Information.or (3) becauset of he particular circumstances of silence. in order to be actionable fraud, must relate to a the case.McGowan, 631 So. 2d at 846;/)()(id, 626 So. 2d at 1293. materialmatter, known to the party,and which it was his To the extent that such a duty purportedlyarises out of a defen l~I duty to communicateto the other contractingparty, dant's confidentialre lationshipwith a plaintiff,the legal defin whether the duty arises from a relationshipof lYUSI. ition of a ·confidential relationship"appears to be well-settled. ,tifjf:' from confidence,inequality of conditionand knowl· In /Jank of Red801111. King , 482 So. 2d 274, 284 (Ala. J 985),the ((~ j . edge,or other attendant circumstances. Alabama Supreme Court explainedtha t: A confidential relationship is one in which one person _.Y Id. at 336-39.The tort of fraudulentsuppression Inter was occupies toward another such a position of adviser or codifiedand now ,s located at AlabamaCode§ 6-5-102 ( 1975). counseloras reasonablyto inspire confidencethat he will Section6-5-102 provides that: act in goodfaith for tlie other·s interests,o r whenone per (sJuppressionof a material factwhich a party is under an son has gained the confidenceof another and purports to obligation to communicate constitutes fraud. The oblig act or advise with the other's interests in mind; where trust ation to communicate may arise from the conndential and confidenceare reposedby one person in another who, relations of the parties or from the particular circum as a result.gains an Influenceor superiorityover the other: stances of the case. and it appears when the circumst.anctsmake it certain Id. ·A party must have knowledge of a fact to beliable for its the parties do not deal on eqwl terms. but, on the one suppression; and the information omitted must be material. side. there is an overmastering innuence. or, on the ~- McGowanu. Chrv.~ler D)rp .. 631 So. 2d 842, 847 (A13. 1993); other, weakness, dependence, or lrust. justifiably · . ;~ )} Doddu. NeldaStephenson Chevrolet , Inc.. 626So. 2d 1288, 1293 reposed;in both an unfair advantageis possible.' ~ , (Al3. 1993);Hardy, ,. Blue Cross& Blue Shield of Alabama,585 /Jank of Red &y , 482So. 2d at 284 (citationsomitted). It also So. 2d 29. 32 (Ala.1991): King u. National FoundationLife Ins. is fairlyclear that if a plaintiffasks a defendantfor information, Cc.,541 So. 2d 502. 505 (Ala.1989). Additionally. a fraudulent then the defendant,s obligatedto provideit. Moreover.once the suppressionclaim should not be presented to a jury if the plain defendant has suppliedsome informationto a plaintiff regard· tiffcanno t proveby substantial evidence that the defendanthad Ing a pi1rticular topic. the defendant is required to make a full a present intent to deceive him. and the allegeddeception prox- disclosure.Lucas u. /lodges, 589 So. 2d 154, 158 (Ala. 1991) TIIEALABAMA LAWYER JULY1995 / 23 I (once pest control company "undertook to issue a letter con the value of his car. The plaintiff alleged that both the dealer cerning the last Inspection" of lhe plaintiffs' house, company ship from which he bought the car and the car manufacturer had "a duly to discloselhe full situation.") (emphasissupplied); had a duty to disclosethe naw in the car's paint. The manufnc JacksonCo.,,. Faulkner, 55A la. App.354. 3 l5 So. 2d 591 (1975). lurer had no contact with lhe plaintiffwith respect to the sale The "particular circumstances" test for a duty to disclose is of lhe car. id. at •s.In reversinga summaryjudgment in favor far murkier than lhe others. If a situation does nol im,olvea of the manufacturer on the plaintiffs suppression claim, the fiduciary relationship or a request for information. then a Court opined that: "duty to speak depends ul)Onthe relation of the parties. the The fact that hvo parties have no contractual relationship value of the particular fact, the relative knowledgeof the par or other dealingsdoes not precludethe findingor lhe leg.-il Lies,and other circumstances.·&mk of Red Bag. 482 So. 2d at duty not to mal 232 / JULY 1995 THE ALABAMA LAWYER 555 So. 2d 97 (Ala. 1989). In fact, financial institutions havea A Pandora 's box ~ I duty to maintain the confidentialityor their customers'1. The ramificationsof the "particular circumstances" rule as it The Court's decisionsin these casesare difficultlo reconcile appears to be developingin recent cases are far reaching. Con, with its most recent decision in Masonv. ChryslerCorp .. No. sider the foll°"'ingscenario. Ms. Jones is a salesperson.Mr. Smith 193ll99, 1995 WL 19652 (Ala. Jan. 20, 1995). Justice Shores approachesher and tells her that he wants to purchasea product authored the unanimous opinion. The plaintiffsin Masonsaw that performsa particular function. Ms.Jones showsMr . Smith advertisements for Chrysler l'iflh Avenues. They visited the one of the products that she distributes. She tells Mr. Smith dclendant car dealership and spoke with a salesperson who that it is the product on the market best-suited to his needs; allegedlyto ld them that Pifth Avenueswere comparable to other however, Ms.J ones knowsthat in less than one month, the man• luxury cars and that the warranty on the Pilth Avenue was as ufacturer that supplies the products that Ms. Jones distributes good as the warranty on other luxuryvehicles. At the time,the will introduce a product that will better serve Mr. Smith. The dealerand the manufacturerknew that the FifthA,-enue line had new product will be slightly cheaper than the product Ms.Jones ·hesilalion" problems. In fact , the manufacturer had supplied sells Mr. Smith. Only members of the industry have knowledge dealers with a "repair kit" that would reduce the hesitation of the new product. DoesMs. Jones ha,oea duty to tell Mr. Smith problem.Id. at • 1. about the upcoming product? UnderHarrington and Hines, it The Masonss ued the manufacturer and the dealership from appears that she does: Mr. Smith certainly would like to kn01v which they bought their car. They claimed,among other things, about lhe better, less-expensiveproduct, and he cannot discov thal lhe defendants failed lo disclose that they knew that Filth er the new product on his own: oniy people in the industry are Avenueshad recurring defects.Th e trial court granted the defen aware of iL Under Hines, the manufacturer of the product that dants' motions for summary judgment on all of the plaintiffs' Ms. Jones sells also may have a duty to share with Mr. Smith claims.Id. at •2. the informationthat it has regarding the new product. TheAlnbama Supreme Court affirmedthe summaryjudgment The burdenswhich a duty of disclosure imposeupon a defen. findingwith regard to the plaintiff'ssuppression claim that nei· dant who has no direct conlacl with the plaintiff. such as the ther the manufacturernor the dealerhad a duty to disclosetheir manufacturer in the exampleabo\'e , are substantial. What type knowledgeof the recurring defect of disclosure that will salisfy the defendant's duty if the defen This Court has stated that whetherone has a duty to speak dant doesnot deal directly with the plainliffi A written discto· dependsupon a fiduciary,or other relationshipof the par· sure is sufficientunder Alabamal aw unless the plaintiffcannot ties,the value ol the particular foct,the relativeknowledge. understand the document or is not given the opportunity to read and other circumstancesof the case.When the partiesto a it. Hensonu. Ce/lieLife Ins. Co., 621 So. 2d 1268, 1273-74 (Ala. transaction deal with each other at armslength, with no 1993)(where application for Insurance policy contained inlor· confidentialrelationship, no oblig.ltionto discloseinforma mation that plaintiff argued was concealed, "no material fact tion arises when the informal.ionis not requested.There was undisclosed"): Hardy, 585 So. 2d at 32-33 (no suppression was noevidence of a confidentialrelationship between the where empt~ bookkt disc~ insuranceplan 's 270-daywail · Masonsand eilherof the lv.'Odefendants, and there \\'ereno ing period); Roperv . AssocialesFinancial Seroices of Alabama, specialcirrumstances to give rise to a duty to speak. The Inc., 533 So. 2d 206, 209 (Ala. 1988): but see, Howardv. Mutu Masons' contactswith Chl')'SlerCorporation consisted pri al Savings Life ln.s. Ca., 608 So. 2d 379 (Ala. 1992) (finding marilyol their viewingnation.ii advertisements belore th ey that lnlormation in documents was not sufficient to put plain purchasedth e vehicleand their presenting the vehicle for tiff on notice of fraud as a matter of law where documentswere repair.Neither the Masons' depositionsnor the1raffidavits in "complex''). Becausea defendantthat had no direct contact with oppositiont o the summaryjudgment motion contain any a plaintiffor dinarily would have to rely on a third party to con· evidenceIndicating that they Inquiredof Chl')'SlerCorp0ra · vey a disclosure, the defendant could not possibly determine tlon or RoyalMotors Company regarding whether problems whether the plaintiffcould read or was given a chance to read similar to theirs hadoccurred in other automobiles. :==. a written disclosure. Can a 113rtysuch as a manufacturer be held liable for suppressionif the person who bought its product ld.at•4 . ~ could not read the manufacturer's written disclosure? Does a Surely, the mechanicaldefects in the Masons' car "·ere more manufacturer have to train its distributor to ensure that an erious and had a greater impact on the value of their car then appropriatedisclosure is made?) ,e paint defect in Mr. Hines' car. Nonetheless.the Court found duty to disclosein the latter case. basedupon the manufactur· r's superiorknowledge or the defectand the foreseeabilityof the Madelln e H, H alka la lalntilfs "need to know" the information. but the Court held - H HO!kaAl) HE At.ASAMALAWYER JULY1 995 / 233 Possible soluti ons 198 (Ala. 1991) ("a negligent-failure,to-warn-adequatelycase Althought he Al.ibamaSupreme Court's shift in emphasisfrom should nol be submitted to thejury unless there is substantial the relation of lhe parties to the relative knowledgeof the par evidence thal an adequate warning would have been read and ties may mean a wider variety of defendants, such as defendants heededand wouldha\-e prevented the accident"). who havt hadno c:onlllctwith a plaintiff.will be subject to a duty Fimlly, the AlabamaSupreme Court recenUyrecogniied the to disclose.a defendant5hould not be found liablefor fraudulent ·competitor'sprivilege· as a defenseto tortious interferencewith suppressionas ii milller of course simplybecause the deJendant business relations cases.The Soop Co., el al. v. Ecolab,Inc .. el has a duty to disclose. A$ the focusof the "particular drcum al. 646 So. 2d 1366 (Ala.1994). Under t hat doctrine.a party may stances"test has shilled to the relativeknowledge of the parties, Intentionallycause another either not to enter into a "prospec the torl of fraudulent suppression has become strikingly simi tive contractual relation with another who is his competitor" lar to the tort of negligent failurelo warn. In Alabama,"(al man or to discontinuea contract terminable at will if the party "does ufacturer is under u duly lo warn users of the dangerous not employ wrongful (i.e. illegalI means." Id. This defensealso propensities of a product only when such products ore should apply to fraudulent suppressioncases so that in com~t dangerous when put to their intended use." Gurleyv. American itive situations. one party does not have to disclose informa HondaM otor Co.. Inc.. 505 So. 2d 358, 361 (Ala. 1987). Many tion about a competitor's product absent a direct inquiry. of the defenses that have been recognized in failure to warn cases should translate to fraudulent suppression cases.One Conclu sion concept from negligent fililure to warn cases already has made It is unclear whether the Court's decisions in Harrington. its way into fraudulent suppression cases. Just as a manufac Hines and Duckworth are Isolateddepartures from the Court's turer has no duty lo warn of a danger that is open and obvious. prior opinions regarding the "particular circumsrances·test in a person doesnot have a duty to provideinformation to anoth fraudulent suppressioncases, or whether the emphasis for the er party if the party can discoverthe fact himself. Id.; Harring test indeedhas shifted from the relationshipof the parties to the ton at •11. parties' relative knowledge.If the requirement of some degree In a failure to warn case, "[wlhere a warning is necessary, of direct relationshipbetwt.!n the plaintiffand a defendantas a the warning need only be one that is reasonableunder the cir prerequisite to imposing a duty of disclosure in fact has been cumstances and ll need not be the best possible warning." discarded,then the implications of the new direction that the Gurley, 505 So. 2d al 361. Applyingthis rule to a fraudulent rule is taking may be dramatic. tr the "particular circum suppressioncase, an adequate written disclosures hould suffice stances" test has undergone a met.,morphosis. and the Court's to discharge a party's duty lo inform if the party has not dealt decision In Masonis to be regarded the exception rather than directly with the plaintiff, even if the plaintiffi s unable to read as the rule, then defendants should be permitted to avail them· or is otherwise preventedfrom reading the disclosure. The dis• selves of defensesthat the Court previous!)•has recognized in closure must be conspicuousand unambiguous. other contexts. such as the learned intermediilry doctrine and The learned intermediary defense from warnings cases also the ·competitor's privilege." • should be availableas a defense in fraudulent omission cases. In failure Lo warn case.<.a manufacturer ·ought not Lobe held liablewhe re it has milde reasonableefforts to comoeywarnings r{! and/or product informationthat. due to drcumstanw beyond ENDNOTES V the manufacturer's control. were not passedon to or received 1, Tho Court cs:ed In.- Tn.JCA~ h: V - · 608 So. 2d 716 (Illa. 1992). 111-o!,,.. _.11on In - · a mhy c:,ac,,pany""'' oego by the ultimate user. Where the third party has an Independent ba:IICIa lease Wlill lhe p1a1n1,a- ta,ed 10 -. 10 tile - Iha! the duty to warn the ultimate user.... the manufactureris justified rental propertywas o,e subjilCI ot c:ondomnallonpt(>CHd.ngs. The leSS11t1upenor . so II reversedthe Instance, In Hines, if the manuiacturer had told the car dealer wmma,y judgmeni In 1holessof• I•....,. S1gn,l,cantly, Ille Coon 234 I MAY1 995 THE Al.ASAM,\LAWYER Major Medical. Provides personalized comprehensive coverage to Lawyers, employees , and eligible family members . 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FAX: 404-814--0782 MontgomeryCounty Bar Association EstablishesNew Volunteer Lawyers Program by DonnaSims, executive director, MCBA he MontgomeryCo unl;yB ar Associ ation. In conjunction with the TAlabamaState Bar and the Mont gomery Regional Office of Legal Ser vices Corporation of Alabama, has recently established the Montgomery County Bar Association Volunteer LawyersP rogram (\/LP).This program creates a new and much neededavenue to the court systemfor low incomeciti zensor MontgomeryCounty. The MontgomeryCounty Bar Associa tion Legal Aid Committee, chaired by F'rank Higgs. overseesthe program and attorney recruitment. The Legal Aid Committee members spent many vol unteer hours individually contacting other attorneys about the program and encouraging their participation to ensure the project·s success. Alsoserv ing on this committee are attorneys TeddiCane , Ellen Hastings,Debra H ol lis, BobbySegall (also chairman or the Boardo( Directorsof LegalServices Cor li?e Copeland.president of the MCB.4.meets with JudgeJohn l. Carroll, U.S.Magis porationof Alabama) and Jim Smith. man trate, lo coordinatepro bonoservices aoai/ab/e for use by federalmagistrates in cer aging attorney of the Montgomery tain /JlfX!Sof prisoners'civil actions. Regional Officeof LegalServices Corp<> rationof Al abama. Many local law firms and sole practi enrolling in great numbers in the new abundance among members of the tioners are supporting the VLP. ApproKi VLP due in large part to the variety of Montgomery County Bar Association. mately l, l 71 attorneys are currently civil case types being handled through When a need arises, Montgomery Coun licensed to proctlce in Montgomery the program. In the past. the Mont ty attorneysw illingly respond. County. Of these attorneys, 722 are gomery County pro bono program Uponenrolling in the new VLP.each actuallyeligib le lo acceptd irect referral focused on domestic abuse cases, thus attorney voluntarily agrees to accept or pro bono cases:447 others hold spe excludingmany attorneys not practicing two clvll non-fee-generatingcase refer cial membershipsin the AlabamaState in this familylaw area. Underthe ne-•ly rals prr year or 20 hours of free legal Bar and are thereforeeligible to partici organized project. attorneys may services, whichever comes first. The pate in specialVLP projects. As of May chooselo acttpt referredpro bono cases project, which is administeredthrough 26, 1995011u 100attorneys had volun in a widevariety of practiceareas includ the Alabama State Bar Volunteer teered to participate in lbe VLP.with ing, among others, adoptions. Chapter Lawyers Program. is a •panel model" many more expected to enroll during 7 bankruptcy, consumer problems,real pro bono project meaning that attor the nnal two stages or Lhe current estate matters. laK problems. probate neys nre assigned cases only in the recrui tment drive. Case refer rals matters, and VAissues. The tremendous area(s)of his or her choice as indicated through the program are expected to success of the recruitment drive thus on the enro llment form. Potentia l begin no later lhan August 1. )995. far is Indicative of the public service clients nre first Interviewed for income Montgomery County attorneys are spirit and support which is found In eligibility by U1e professional staff of the 236 / JULY 1995 THE ALABAMALA\ WER Montgomery Regional Officeof Legal County attorneys are thus serving as simply could not exist. Montgomery ServicesCorporation of Alabama.Eligi role models for attorneys throughout County attorneys are grateful for this ble clients are then referred to the Alabama.IL is hoped by Copelandand active suppOrtb1• Legal Services attor· \labamn State Bar Volunteer Lawyers the board membersor the Montgomery ncysand staffand look forwardlo work· 1'rogrnm for direct referral to a VL,P County Bar Associationthnt other pro ing cooperatively to better meet the attorney. The volunteer attorney is bono programswill review this special civil legal needs of indigent Mont expectedto handleonly the specificlegal projectand institute a similar one with· gomeryCounty citizens. matter referred. Paperworkand report in their localVLP proiect. The newly restructured VLP has ing requirements associated with the Finally, it must be noted that one prQ\.'tJ\to be very successfulin a short project are kept to a minimum so that major reason for the successof the VLP period of lime. Recruitmentefforts will the volunteer attorney is Freeto spend has been the cooperationof Jim Smith contir.uein the months ahead. Members his or her entire time on the actual rep and the staff or the Montgome1')1Region of the MontgomeryCounty Bar Associa resentation rather than on administra· al Officeof LegalServices Corporation o f tion maybe proudof their long-standing live matters. Alabama. Legal Services programs commitment to the provision of pro Visionand leadership for creation of nationwide are now threatened with bono legal services and service to the the ntw VLP were provided by l..ee decreased funding or zero funding by community generally. Recognition of Copeland, 1995 president of the Mont Congress.In light of this, pro bono ser thoseattomC)-'S will be a high priorityfor gomery County Bar Association. and vices from the private bar are greatly the coordinator of the VLP: however, DorothyNorwood. the 1994 presidenL needed to assist Legal Servicesstaff in participating volunteers know that Bothworked diligently l o producea suc· meeting the ever increasinglega l needs helping clients in a lime or great per cessful program which would not only of indigentclients. Smith and his entire sonal crisis is sufficientreward in and or benefit indigent clients. but also appeal staff have pledged their support to the itself. If you are a practicingattorney in to bar members volunteering their Montgomery County Bar Association MontgomeryCounty and have not yet valuable time. As local bar president, and will provide income eligibility joined the VLP, please call the VLP Copeland has chosen the VLP as his screening for the VLP. Without lhis coordinator (located in the Alabama personal project. pledging to see that screening mechanism, the new VL,P State Bar building)al 269-1515. • the program begins operation and is successfullyunderway dur ing his term. The officers and board members have agreed wholeheartedly with this plan due to the fact that the new VLPwill reach out to a client communitygreatly in need of fTeelegal serviceswhile also fulfillingthe moral responsibilityof all CADSO attorneyslo provideaccess lo justice for Computer Animationand DesignS ervices all citizens regardless of their financial circumstances. euurtJvo111/JJ'CsCJ1tatio11s J JccidCJtt t TMEAI..ABAMA LAWYER JULY1995/ 237 Allied-Bruce Tenninix,Inc. v. Dobson: WidespreadEnforcement of Arbitration AgreementsArrives in Alabama Bg Henry C. Strickland Introduction dispute arises; or, more commonly.par H.L. FullerConstru clicm Co. u. Indus The United States Supreme Court case ties to a contract might agree to arbi trial Deuelollmenl Board.590 So. 2d 218, of Allied.Bruce'renninix, ln c. v. Dobson, trate any disputes that later arise from 221 (Ala. 199l)(quotingW ells v. Mobile 115 S.dt 834 (1995),TeeM specifically to avoid lh~c~mmon prospective agreei\,ents to submit dis ma completely refuses lo enforce all lawrule that arbitrationagre ements 1tere putes 'to arbitration. Many state ar!,itra ~tfch agreements.Nol only haveAlab ama voida nd against public policy. Southland tion statutes Jl!ecl1;.ded enforcemenl.of courts continuedto embrace the old com eorp.u. Keating, 465 U.S. l, 13-14 (l9s;.J. prospective arbitration agreements in mon lawhostility toward arbitra tion agree The FAAthus specifically provides lhal any eertain categories of contracts, and those men ts, the Alabama Code exp~essly arbitration agreement to which the Act iu:bitrationagr eements w1JIn owbe enforce prohibits their enforcement~Ala.Code § applies "shall be valid, enforceable,and able under the"FAA. 8-1-4i1(3).u;:i der Alab~malaw, therefore, irrevocable, save upon such grounds as Nowher~~ ill the easehave-more impa c:t a par,cy lo an arb1lrat1onagreement may exist... for the revocation of any other than in Alabama. Although Alabamahas revokebis agreementany time beforean contract." 9 U.S.C.§ 2 (1988). long enforced arbitrati"onaw ards after arbitration award is rendered.1 As a result. To avoid preempllon by the F'AAof parties voluntal'ily pufs'ue U1emto con a{bitration agreements have been mean Alabama'spolicy against the enforcement clusion, Alabamalaw has always refused ingle..-;sin Alabama, and tl1e use of arbi of arbitration agreements. the Alabama to enforce prospective agreements to tration has been limited. Supreme Court narrowlyconstrued the submit disputes to arbitration.Widespread The AlabamaSupreme Court summed scope of the FAA's applicability.'lt first application of the F'AA.therefore, will up Alabamaarbitration lawas follows: held that the FM applied only to cases in revolutionizearbitration law in this state. !Altthis juncture, this Court feels federal court-not cases in state court For the first time, enforcement of con compelled to point out its disfavor "The wording of the Act and its legisla tractual arbitration provisionswill be the of predispute arbitration agree tive history," the court said, "indicate a rule rather than U1eexception in Alaba ments. In fact, Ala.Code loij 1975, desire by Congress to create a law only ma. In the wake of this change, many (section! 8-1-41(3), explicitly pro applicable in federal courts in diversity Alabamalawyers w ill need to becomebet hibits the enforcement of predis eases." Ex Parle Alabama Oxygen Co., ter acquainted with the FM. Moreimpor pute arbitration agreements. This 433 So.2d 1158, ll62 (Ala. 1984). This tantly, they must reconsider the advice somewhat hostile attitude toward interpretation enabled Alabamacourts lo they giveclie nts about whetherlo include predispute arbitration agreemenLs continue denyingenforcement of all arbi arbitration provisions in their contracts is rooted lo the belief that parties tration agreementsbrought beforethem. and whether to sign contracts contain should not be permitted, by their The UnitedStates SupremeCourt over ing arbitration provisions. agreement. to oust the courts of turned this interpretationof the ~·AA,how their jurisdiction... . ~r. in Southland Corp.v. Keating,465 Alabama Arbitration Law and "The public policy of this state is U.S. 1 (1984).The Court held in South the Alabama Supreme Court 's to encourage arbitration and ami land Ulat the FM '·creates a bodyof fed resistance to the FAA cable settlements of differences eral substantivelaw'' basedon Congress's Nearly all arbitration comes about between parties; but public policy power to regulate interstate commerce. because the parties al some l.imevolun also holds void an agreement in Id. al 12. Whileconceding some ambigu tarily agreed to arbitrate their disputes advanceto oust or defeat the juris ity in the FAA'slegis lative history, the rather than take them to court. Parties diction of all courts, as to differ Court held that Congress intended the might make such an agreement after a encesbetween the parties." central provisionsof the FA<\to apply in 238 /JULY 1995 THEALABAMA LAWYER state as well as federalcourts. Terminixwould arrange and pay for any the FAAapplies to all arbitration agree After Southland. the applicability of repairs made necessary by subsequent ments within Congress's commerce lhe FM hinged on the FM's inll!rstate termitedamage. When termites were later power.Traditional wisdom and the many commercerequirement. By its own terms, discovered,T erminlx providedextermi SupremeCo urt decisionsconstruing the the l'M applies and requires enforce nation treatments and performed vari commercepower indicate U1al it is almost ment or arbitration agreements only if ous repairs. The homeownerslater filed limit less. It extends to any activity or they are In a ;·maritimetnnsaction or a a civil action against Terminix,however, transaction that "affectsinterstate com contract evidencing a transaction in claimingthat Terminixbreached the ter merce." Hodel v. VirginiaSurface Min (interstllt) commerce."9 U.S.C.§§ l & mite protection contract by failingto pro ing & ReclamfllionAs:socialion, 452 U.S. 2. I( neither the maritimetransaction nor ,.;deall necessaryrepairs. 264, 276-77 (1981).Applying this stan the interstate commerce requirement is Relyingon an arbitration provisionin dard, the Supreme Court has held that satisfied, then the FM does not apply; the contract, Terminix med a motion to even "intrastate activities ora very small and state law controls. In Alabama. that slay lhe litigation to allowarbitration to scale (cnn(be federally regulatedif they means the arbitration agreement is void proceed.The trial court deniedthe motion. might affectcommerce when combined and unenforceable. and the /\lab.1maSupreme Court afiirmed. with similar small-scaleactivities." John Againtrying to salvageAlabama's poli An arbitration agreement is enforceable E. Nowak, el al., Conslilulional law cy disfavoring arbitral ion agreements, in Alabama.the court noted,only if it falls 153-54(3d ed. 1986). In Wickardv. Fi/ the AlilbamaSupreme Court limited the within the coverageof the FAA.Applying bum, 317 U.S. 111 (1942),for example, applicnbilityof the ~·AAby narrowlycon Its "contemplation of substantial inter the Court held that Congresscou ld use struing its interstate commercerequire state activity"test. the court held the FAA Itscommerce p owerl o regulnte a farmer's ment. The test for determiningwhether inapplicablebecause the homeownersd id productionor grain 011 his own form for a contract is one "evidencing a transac not contemplate substantial interstate his own consumption.The reach of Con· tion in (interstate! commerce"and thus activity,ohen they entered the contract. gress'scommerce power and thus of the enforceableunder the FAA.the Alabama The>·dealt with Terminixin its Daphne, f'M. therefore.is immense. court held, is "whether.al the time (the Alabamaoffice. and they purchasedser The only case in more than 50 years p.1rt1es)entered into !the contract( and viceslor and protectionor lheir home in to suggest any limit lo the commerce acceptedlhe arbitration clause. they con, l~airhope,Alabama. poweris the recent case or UnitedStates /empluted substantial interstate activi The UnitedSta tes SupremeCour t, how u.lopez, 1995W L 238424(/\prll 16, 1995). ty." Ex PorteJones, 628 So.2d 316 (Ala. ever. held that the PM did apply to the That decisionstruck down a (ederal statute 1993)(quolingEx Parle IVanm, 548So.2d termite protectioncontract and required 157. 160(/\la. 1989). and MatroIndustri enforcementof its arbitration provision. al Pan1tingC-Orp. v. Termn1alConstruc The Court rejected the ·contemplation tion Co., 287 F.2d 382. 387 (2d Cir.) of substantialinterstate activity" test used : -- ~ TED DASHER & (Lombard,J .. concurrin11)(emphasisin by the AlabamaSupreme Court. The rel original)). Applicationor this test, which evant inquiry,the Court s.,ld, ls whether ~ ASSOCIATES was substantially more restrictive than the contract in fact involved interstate tests used by most other courts, resulted commerce-not whether the parti.es con HEWLETT· PACKARD in numerous contracts being deemed templatedsuch commerce.M ore imp0r COMPUTERSI PERIPHERALS I REPAIRS outsWethe coveragt:of th, FAA.Conse tanlly, the Court held that the phrase quently, Alabamalaw continued to gov "in\lOlvingcommerce" used in the FAAis A COMPLETELINE O F USEDAND ern man>•arbitration agreements in the "functionalequi\•alent" of the phrase REFURBISHEDHP EQ UIPMENT Alabama(particular ly those relating to "affectingcom merce."a phrase that "sig TOF ILL ALL OF YOUR consumer transactions). making them nals a congressional intent lo exercise its COMPUTER REQUIREMENTS. iinenforceable.> CommerceC lause powerslo the full." Id. LASERPRI NTERS, SCANNERS, DISKD RIVES, at 839.The Court thus concludedthat the DESKJETPRINTERS , PLOTTERS, PC'SANO Allied -Bruce Term/niJr Actreaches to the limitsor Congress's com 9000SERIES WO RKSTATIONSARE READY Compan ies , Inc . v. Dobson merce power. Under this standard. the FORtMMEOIATEOEIJVERY. CALLOUR The UnitedStates Supreme Court again ttrmite protectioncontract clearly im'Olv TOLLFREE NU MBERFOR AVAILASIUTY overturned the Alabamacourt's narrow ed interstate commerce.·1n addition to ANOPR ICING. inlerpretMion of the FM in ,Wied-Bruce the multistate nature or Terminix.. . : A FULLYSTAFFED REPAIR Tann1i1lrCompan ies. Inc. v. Dobson.T hal the Court noted, "the lermite- treating DEPARTMENTIS ALSO AVAILABLEFOR case concernedan arbitrationag reement and house-repairing material used by ALL OF YOURPRllfTER I PLOTTER in a termite protectioncontract between ITerminixlin its (allegedlyInadequate) SERVICENe.EDS . an Alabamahomeowner and an Arkansas effortsto carry out tm tenns of the Plan. 4117 2ND AVENUE SOUTH corporationdoing business in Alabama. camefrom outside Alabama.· Id. at 843. BIRMINGHAM, Al 35222 The contract provided that Terminix wouldprovide termite protection for the Appll cabillty of the FAA after S00-639-4833 Allied -Bruce Term/n ix lifetimeof the residencein exchange(or 2 05-59 ::1.-4'74'7 nn annual fee. It further provided that Under Allied-Bruce Terminix, then, FAX 59 :J..- :J..:I.OS Tl IE ALABAMALAWYER JULY 1995/ 239 banning the possession of firearms in citrant party to proceedwith arbitration These federal rules of arbitration con school zones specificallyon the ground as agreed.In order to obtainsuch an order, tract law. based on either the language that it wasbeyond Co ngress's commerce a party must show:( 1) that a validand of the l';\A or the polic.iesimplicit in it. power. The decision may be limited to enforceablewritten agreement to arbitrate reflect a strong policy favoringarbitra the peculiar facts of the case. or it may exists;(2) that a disputeexists between the tion. As summarized below, the Court's mark a renewed initiative by the Court parties;(3) that the dispute is referable to decisionsactually make arbitrationagree to narrow Congress'scommerce power. arbitration under the arbitration agree- ments more enforceablethan 0U1ertype.s In any event, it suggests that while the ment; (4) that a demandfor arbitration of contracts. Indeed.an arbitration pro· scope of the FAA's applicability may be was made; (5) that the other party failed vision is more enforceablelhan the sub immense, it is not limitless. or refusedto arbitrate;and (6) that the stantive provisionsof the contract that Despite Lopez,thea FAAhas lmost uni- dispute arises from a maritime transac- contains it. versal applicability, since the Court'sother lion or a contract involving interstate cases interpret the commerce power so conunerce.Section 4 clearly contemplates 1. Issues Relating to the Validity of expansivelyand since the FM nowapplies that such petitions shalI be addressedto the Contract to the limits of that power.•All commer- federaldistrict courts, but il limitsfederal In decidingwhether t o enforcean arbi- cial arbitration agreements (and nearly jurisdictiolo_ r such petitions to cases tration agreement. a court must first all arbitration agreements of any kind) in which t e I I courts haveindepen- determinethat the partiesactually entered affect interstate commerce, are within dent subj t att r · risdiction.It is not validcontract to arbitrate and that no the federalco mmerce power,and are thus presently I r whetfi state cou st nses exist to defeat the contract. The governed by the FAA.The result~ - issue ord r compellin r i I', expressly1>rovides that arbitration virtually all arbitration agreemii,_n~--are.., suant to§ 4, , reementswithin its coverageare "valid, enforceable as a matter of federat. aw, B. Co11traclLaw a11d/he FAA rrevocable, and enforceable.save upo11 and al I courts - includ ing Alabama t.s inc)icated by the abovere quirements such grou11dsas exist al law or i11equi- c.ourts- are obligated to enfot& them for obtaining an o derstaying litigatio ly for the revocalio11of a11yco11trac/. " 9 pursuant to the l'AA. or compelling arbitration, proceed in s U.S.C. § 2 (1976).A party thus may defeat to enforcear bitration agreements Lind~ 'tration agreement under the FA,\ Enforcing arbitrat ion agree• the FAA raisea varietyof ~u · not dire by showin "la!:kof consideration,fraud , ments under the FAA' Jyadd ressedby the Act.Ar bitration agree- u a do ®ility, or any other contract A. The Mechm1ics of E11forcing ,r,bi- merns , alter all, a're simP,IYc ontpicts, nd defen . • /ration Agreements$fl i'der tlie'FAA: the substantive l)O\tion"of tl)e PAAon its or o prevent enforcementor an Ordersto Sta.I/lil igatioh and to face 1bes liltl r, ore tnao require these ar · ation provision. however,a contract CompelA '!!.1"ation ci ntracts to Qeenforeeil like al l other c · defensemust relate specificallyto the arbi- The I' AA provrnes h~ avenue's for Gaels.Attempt s"fo enforce or circu~ , l tration provision itself. The federal doc- enforcing arbitration a~reement within arbitration agreements, therefore, rais trine of severabilitytreats the arbitration its covera'ge:( i) a stay of litigation pena- a host of contract issuesju st as atle pts provisionas if it were separate from the ing arbl{rajion and (ii) an orc!_er com- to enforceo ther.conrracts do'i_earties ay remainder of the contract. A contract pelling arbitratiQ_n.See 9 U.S.c~k§ 3 & 4 argue. for example.tliat tbe c6iitt: c efense that concerns the contract as a (1976).lf a lawsuil"is brougtit on 'anissue ineludiog the arbitration clab=is vo 1 •hole, therefore, will not prevent arbi· that is subject lo a vali{'a~ ra(atJpagree - on'grounds of frauil or unconsc, bih lion; rather, the court will require U1at ment, section 3 l?lovia~ ~ a '}!le court t)•; or they may argue that a partic defenseto be addressedto the arbitrator. on applicationofon ,e~]l e parties"mus ~ ispute is not coveredby the languageo If, for example, a party contends that a stay the action until,~ Pirt~~ limi the applicablearbitration clause. contract containing an arbitration pro- to an arbitrationproceeding'an ac CQ~ance Although state contract law could rea- visionwas fraudulently induced , the court with the terms of their~agreemenU 9 ~h ably govern these issues, the United will nonetheless order arbitration unless U.S.C.§ 3 (1976). In or "Reform of the Justice system Is too important to be left to lawyers and judges . " his statement was made by fail.and it is the public interest that Aftercreating the UnifiedJudicial Sys Chief Justice WilliamRehnquist must be this mission'scompass."• tem. the Legislature did more. It provld· T of the United States Supreme Alabama, of course, learned the value ed for continuing planning by continuing Court LO a Just Solutions Conference of citizen Involvement in changing the the AlabamaJu dicialConfe rence that had organized by the AmericanBar Associa· justice system almost 30 yearsago when earlier been authorized, and by creaiing lion and held May 1-3. 1994. in Lees· the AlabamaState Bar. under the leader· the AlabamaJudicial Study Committee.' burg, Virginia. attended by 380 ship of its president, Howelllieflln, took Neither the Judicial Conferencenor the conferees, a majorily of whom were an activerole in conveningthe First Citi- JudicialStu dy Committeewas structured, nonluwyers- educalors, civic leaders. 1.ens'Conference on AlabamaStllte Cou rts as the first two citizens· conferences had citizen activists, media representatives, to address problems faced by the judi· been, to provide for the type of citizen business people. labor representatives. ciary at that lime. Whilehe waspresident involvemenL elected and appointed officials. con of the Bar. I fellinhad appointeda "Com Mer having heard of the usefulnessof sumer activists.and others. mittee on the Feasibility or a Citiz:en·s comprehensiveplanning al the Confer In a report resulting from that confer Conference" and two other committees ence of Chief Justices, Chief Justice ence, entitled Just Solulions, Seeking that were 1..1sked lo study the problem of Sonny Hornsby, in the fall of 1992, re Innovation and Changein /he American the congestionof cases in the circuit and quested the Administrative OHice of JusticeSys/em, the confereesnoted: appellatecourts.• The Feasibilitycommit· Courts lo initiate a statewide planning "The American Justice system is tee recommendedthat the AlaoomaState program.designed to allow the judiciar')' at a crossroads. facing challenges Bar. \\ilh the help of the AmericanJudi to examineitself and to define.itspriorl unprecedentedin the nation's histo- cature Society, sponsor a "Citizen's lfes. Fifty representativesof the trial and 1')1,challenges unforeseen as recently Conference on AlabamaState Courts."' appellateco urts, all connected with lhe as a generation ago, challenges for The First Citizen's Conference was held UnifiedJud icial System,serve d as a steer which the sysltm Is neither de in Montgomeryon December8. 9. and ingcommittee and met in Birmingham. signed nor is now equipped to han· 10, 1966.The confereeswere from l'\'ery Former Governor Albert P. Brewer and die. While the system is among the part of the stale and were di\oersein their Dr. JamesW. Williams,Jr., presidentand world's finest-Indeed. it remains professionsand trades; and al the con executive director, respectively, of the one or the nation's hottest ex clusion of their meeting, they adopteda PublicAffai rs ResearchCou ncil of Alaba ports-change is clearly called for.'' consensus statement recommendingthe ma, served as facilitators, and the group abolishment of justices of the peace,the identifiedseveral areas in which improve creation of a unifiedjudicial S)'Stem.and ment could be made.• "In the justice S)'$lem,change is the establishmentof a judicial adminis Thespecific objective of this "in-house" most likely when it occurs 'where trative ofllceof courts al the $Lalelevel.' planninggroup wasto reconfirmor rede the rubber meets the road'--i!t the Some recommendations of the First fine the mission, goals, and objectives of state and local level,whe re it touches Citizens'Conference we re adopled by the the Unified Judicial System, to idenlify real people everyday. If change islo Legislature in 1969 and 1971,' but the .uternativesfor improvingthe e((icicncy be lastingit cannot be imposedfrom major overhaul of the Judicial system and effectivenessof court processesand Washington.or l'\'en from the bench· would come later when llowell HeOin services. lo develop a comprehtmsive es of state supremecourts and state was electedChief Justice of the Supreme program for implementing the changes house chambers.II must originatein Court of Alabama,and a SecondCitizens' recommended, and lo establish an on cities and towns. and ll must reflect Conferencewas convened that made its going process to monitor and evaluale the concerns of everyday people. final recommendations in J973. Those any changes lhal were made. While the agenda should be recommendationsultimately resulted in ALan initial meeting of the Judidal Informed and ad,•anced by justice the creation of the UnifiedJudicial Sys PlanningCommittee in NO\-ember1992. system ·insiders'-national. state, tem and the adoptionof the JudicialArti former GovernorAlbert P. Brewerasked and local bar associations promi cle Implementation Act, and Alabama's each member of the committee to rede· nent among them- it is the public, Judiciary becamea model for the rest of fine the mission, goals. and objectiveso f above all. that the system must not the country.• the JudicialSystem and to identifyissues, THEALABAMA LAWYER JULY1995 / 24.3 areas,procedures, or processesthat might One of the first findings of the commit other important issues affecting the need to be refined or changed. so that a tee was that the UnifiedJudicial System administration of justice in Alabama.'' comprehensive plan could be developed was. for the most part, operatingreason On March10. 1995,the AlabamaJud i to improve the efficiencyand effective ablyefficie ntly. The secondmajor finding cial Conference, after noting that "the ness of the UnifiedJud icial System.Each was that, while a formal "planning doc Alabama Judicial Planning Committee, committeem emberwas specifically asked ument" may never have been published. after twoyears of study lofJa number of to "dream" and to definehis or her indi the officialsof the UnifiedJudicial System issues affectingthe structure, organiza vidualvision of how the Unified Judicial had been planning and were still plan tion, and administration of the Alabama System could better serve the public. A ning; however.the citizen input that had state courts, lhadl recommended that joint meeting of the committee and the been evident in the citizens' conferences the AlabamaJudicia l Conferenceand the various subcommittees appointed to was missing, and a recommendation was Boardof Bar Commissionersof the Alaba address specificproblem areas was held made thal Lhefeasib ility of reconvening ma Stale Bar jointly issue a call for a in Tuscaloosa in September 1993. At this a citizens' conferencebe explored.• Third Citizens' Conference on the combinedmeeting, th e membersdefined At its' annual meeting on December Courts," adopted a resolution asking various "visions" of an ideal S)•stemfor 1993, the Judicial Planning Committee former Governor Brewer and Retired the courts of the future, and they adopt endorsedthe conceptof the citizens' con Justice Adamsto solicit nominationsfor ed the following mission statement for ferenceand fonnallyadopted a recommen participants in such a conference. The the UnifiedJudicial System: dationdirecting U1e Administrative Office AlabamaJudicial Conferencealso asked "Themission of the Alabama IUn i of Courtsto reviewthe feasibilityof fund that t:he Ciliz.ens' Conference"to make fied] Judicial System is to provide ing a new citizens' conferenceand to re a report to the Judicial Conferenceand equal justice under law in all cases, port its findingsat the Committee's1994 Board of Bar Commissioners on the controversies, and matters within its meeting. issues of judicial selection and cam powers and jur isdiction and to be Interest in reconveningthe conference paign finarn:ing as soon as possible,and accountable for the provision of heightened substantia lly after the if feasible, prior to the 1995 session of judicialservices in a just, speedy,and November1994 e lections,in the hope the the Alabama Legislature and make a II efficientm anner so that the integrity conferenceco uld look at several issues, other reports on subsequent issues as of the system and the public's especially concerning judkial selection soon as practicable." respect for it will continue to be and retention and financing for judicial The Third Citizens' Conference was maintained." campaigns. The Committee selected sev convenedand held its first meeting on eral of its members to serve on a steer March 23, 1995, in Birmingham at the ing committee lo explore the feasibility CarrawayConvention Center, where the of reconvening a citizens' conference, conferees heard remarks from Broox and securing the necessary funding.•• Holmes,President of the AlabamaState Pom1erGovernor Albert P . Breweragreed Bar, and Chief Justice Sonny Hornsby, to chair the steering committee, and the chairman of the Judicial Conference. Committeemet on December J, 1994,at They also received an overviewof the Samford University. That steering com Alabama Judicial System from Abner .R. mittee of the JudicialStudy Commission Powell Iii of Andalusia. Attorneys Joe formallyissued a resolution recommend Whatley and David Boyd briefed the ing that the AlabamaJudicial Conference conferenceon the status of the two Vot and the Alabama State Bar, which had ing Rightssuits pendingin the Eleventh called LheF irst Citizens' Conference, be Circuit Court of Appeals involving the the appropriate group to jointly consid structure of Alabamaappellate and cir er a calling for the citizens' conference. cuits courts, which could havean impact On December 9, 1994, the Alabama on what the conference was consider State Bar. noting the "widespreadpub lic ing. Ms. Frances Zemens,vice president concern, \\>hichis shared by the Alaba and executive director of the American ma Stale Bar,about judicial elections in Judicature Societyof Chicago, spoke on /\laban1a;' and thal the Bar'sTask Force the topic, "JudicialSelection in the Unit on Judicial Selection had previously ed States," and Dr. Patrick M. Mcl'ad "spent much Lime extensively studying den, Loyola UniversitySchoo l or La"'· issues involvingthe elected judiciary," Chicago.ta lkedabout "CampaignFinanc adopted a resolution in which it called ing for Judicial Elections." for and authorized the formation of a The conferees were assigned to dis Third Citizens·Confere nce on the Alaba cussion groups, where they discussed ma State Courts, "to be modeledgener these questions:Whal do you like about ally on the 1966 and 1973 Conferences, Alabama'scurrent process for selecting to study the selection of judges in Alaba judges, both lrial and appellate? What ma, judicial campaign financing and do you believe could be improvedabo ut 244 / JULY1995 THE ALABAMALAWYER Alabama's current judicial selection • Increasing public awareness of and tice Institute; the National Center for process? How could the suggested gaining public support for Justice sys Slate Courts; the Conferenceof Chief Improvementbe addressed by conllnu tem improvements; Justices; and private think tanks (e.g., i ng wit h partisan elections, or by • Enlistingpu blic and governmentsup the RANDCorporation) a nd universi changing to nonpartisan, either a port for fair and adequate funding for ty-basedresearch and practice-orient· muil/nominating commission. or the state's justice system: ed projects; merit Governor nominating, ...1lhou 1 a • Identifyingand disseminating models • Conveningperiodic public/professional commission> The conferees then of successful initiatives from other symposiumsand conferencesto bring reassembled and the various discussion jurisdictions; together justice system stakeholders groups gave their reports. • Conducting periodic assessments of to discussspecific issues, eva luate reac The conference met a second time in system-wideand localjustice problems tion to new Initiatives and facilitate Montgomery on May 4, 1995. Retired communication and feedbackon the and publicopinion about Justice: Judge Richard Holmes told the group justice system generally. about the operations of the Judicial • Enhancing cooperation among the Inquiry Commissionre lating to the dis three branches of government by cre Comm ission time lines: ciplineof judges, and RobertElliott. l~sq., ating a SI.andingforum al which to To ensure timelyco mpletion of lhc inl· of Lexington. Kentucky, discussed the work collegiallytoward effectiveso lu tiatives, time-specific dates for comple operation of the nonpartisan election tions: and tion should be built into the authorizing processin Kentucky.John fox Arnold, • Acceptingsuch other tasksto impl'O\ he last few months havebeen lawyers and ask quesllons about legal teams againstwhich it was competing. very busy ones for the Young careers.This year approximately110 high Finally. the section has agreed with [I Lawyers·Section. The section schoolstudents participatedin the forum. the YLSof the BirminghamBar Associa Mid its annual seminarat the This year's attendance or 11O students tion to sponsora bandparty at Sloss fur beach: put on its secondannual minori was an increase from last year's atten nace on Thursday, July 20 during the ty participationconference; sent. in coop dance of 75. Fred Cray , who chairs the state bar convention.The party will begin eration with the YMCA.winners of the committee.was responsiblefor the con al 6:30 p.m. with the band starting at 8 high school mock trial competition to ference.He is commendedfor his efforts. p.m. The proceedsfrom the party will be Denver. Colorado to participate in the The section is also responsible for the donatedl o the YWCAprogram for abused National Mock Trial Competition; and spring admissions ceremony1ohich took and battered women and children. Tick planned and organized the admissions ets are $IOand may be purchasedwhen ceremonle5for the spring adrnitlees. registeringfor the convention,from the Theannual seminar at the beach,which BirminghamYLS or at the gate. was held at the Sandestin Beach Resort This is my la.starticle as president of in Sandestin, Florida once again was a the YLS, so I take this opportunity to big success. Approximately260 lawytrs thank you for allowing me to serve as registeredto attend the seminarand were your president for the past year. It has eligiblefor up to six hours of continuing beenan honorand a privilege. l thank the legal education credit. The seminar fea officersand the members of the Execu tured an outstanding lineup of speakers, tive Committee for their hard work and including: Judge Arthur Hanes; Dean dedication. • Charles Camble: Professor Brad Bish op; Miguel J. Cortez (clerk for the Eleventh Circuit): Skip Amu; Tom Dutt on; David Dowd: and Chulie Anderson. The topics on which they spoke ranged from DUIlaw to evidence to procedureto the new corpgrate codt. HAL WEST Each morning session of the seminar was foll owedby the usual entertainment in the afternoon and evening at which place on May 23, 1995. Over 100 new the lawyers attending the seminar had lawyers were admitted to the state bar at an opportunity to meet and exchange the ceremony.The section also planned ideas. On behalf of the YLS,I extend a and organizeda luncheon after the cere special thanksto the firms and compa monyin hooor of the admittw and their nies which sponsored those social guests. This project is one of the most events: Pittman, Hooks. Marsh. Oulton difficultand time-consumingof all or the & Hollis. P.C.: Jaclc:son, Taylor & Mar section'sprojects, and Tom Albrittonand tino. P.C.: Beasley.Wilson , Allen, Main Bryan Horsley are commendedfor their & Crow, P.C.; Hare, Wynn, Newell & hard work in planning and organizing Newton: Foshee & Turner; and Insur U1e ceremony. ance Spccinlists, Lnc.I also thank Jud I can also report that. following a son Wells, Cordon Armstrong. Robert statewide competition held in Mont Hedge. and Andy Birchfield for their gomery, an all-star learn of high school hard work in putting on the seminar. mock trial competitors represented the On May5 , 1995.the sectionput on the state al the NationalMock Trial Compe Second Annual Minority Participation tition in Denver. Colorado. The group Conference. The conferencewas held at did very well despite the fact that it was AlabamaState Universityand provided hamperedbecause i ts memberswere from minorityhigh school students an oppor schoolsac ross the slate and were unable tunity to meet "'ilh minorityj udges and to practice as a team like mosl or the Tl IE ALABAMALAWYER JULY1995 / 247 DISCIPLINARYREPORT Public Reprimands 1>etitionsfiled by Bivenson behalf of the son ,~ere ruled upon • On May 12, 1995,L he AlabamaState Bar administereda pub by the Mississippi Suprem~ Court in April of 1990. However. lic reprimand, without general publication,to Montgomeryattor Bivens failed to inform his clients about the denial of these ney Keith Ausborn . Ausborn was listed as attorney for the motions until the mother came to Bivens'Tusca loosa officefor petitioner in a matter wherein the petitioner was seeking to informationin l'ebruary of 1991.At that time, Bivensa lso offered terminate the parental rights to and secure permanent custody to me a petition for writ of habeas corpus in the federal court. of a juvenile. The child's mother had executed a written docu· However,he failed to pursue this. ment staling that she wanted to give up her parental rights Lo The Disciplinary Commissiondetermined that Bivens' actions the child. violated Rule 1.3, in Ulat he willfully neglected a legal matter The court inquired of the mother as to how she had come to entrusted to him, Rule l.4(a), in that he failedto keep his client execute the written document. The mother stated that even reasonablyinformed about the status of the matter, Rule l.5(a), though she had an attorney at the time she executed the docu in that he charged or collected a clearly excessive fee, and Rule ment, she did not discuss the document with her attorney, nor 8.4(d), in that he engaged in conduct prejudicial to lhe admin did she advise her attorney that she had executedthe document. istration of juslice. all of which adversely reflect on his fitness Whenasked by the courl if she had prepared the document her to practice law,a violation of Rule 8.4(g). fASBNo. 93-466) self, the mother stated, "I prepared it myself but I had some legal • On May12. 1995,Leeds. Alabama attorney Na ncy L. Franklin advice from Mr. Ausborn.''The court then inquired of Ausborn was publicly reprimanded for willfullyneg lecting a legal mat as to how he had come to be the attorney who prepared U1edoc ter entrusted to her and failing to c-0mmunicate with a client. ument for the mother when, in fact. Ausbornknew the mother A client made arrangements wiUl Franklin to handle a Social had an attorney, and 1\usbornwas representingan adverseparty. Security disabilitybene fits case. After the initial consultation, ln response, Ausborn stated, "The only communication I had the client heard nothing for eight months. Numerouscalls and with her (the mother ) was indirectly Ulrough Mrs. Newberry phone messageswere ignored.When the BirminghamBar 1\sso (Ausbom'sclient)." dation investigated the client's complaint, rranklin did not Ausborn's conduct was found to haveviolated Rule 4.2, which respond to the allegations. The DisciplinaryCommission had rule prohibits an attorney from communicating about the sub determined Ulat a public reprimand without general publica ject of the representation with a party the attorney knows lo be tion was appropriate in this case, and franklin accepted that represented by another attorney. The DisciplinaryCommission decision.(ASB No. 94-173) also found that Ausborn's conduct involved dishonesty, fraud. deceit or misrepresentation, a violation of Rule SA(c), was con Suspensions duct prejudicial to the administration of justice. a violation of • Scottsboro attorney Richard ~, . Payne was suspended from Rule 8.4(d), and Ulerebyviolated the Rules of ProfessionalCon the practice of law by Order of the Supreme Court of Alabama duct by engaging in conduct 1~hicha dversely reOectedon Aus ior a period or three years. said suspension effectiveFebruary born's fitness to practice law, violationsof Rules 8.4(a) and (g). 21. 1995. The order of the Supreme Court affirms the action of IASBNo. 94-1701 the DisciplinaryBoard of the AlabamaState Bar which suspend ed Payneon the basis of evidence U1athe had misappropriated and converted to his own use funds belonging to his client. • On March 12, 1995,T uscaloosa attorney John Alan Bivens IASBNo. 93-091 I was administered a public reprimand, with general publication, by UleA labama State Bar. • Gadsdenattorney Milford Leon Garmon has been suspend Bivenshad been hired by a woman from Mississippi to repre ed from the practice of law in UleState of Alabamafor a period sent Ulewoman's son in an appeal of a criminal conviction. of 225 days. said suspension to be effectiveApri l 22. 1995.The Bivensmade the mother and son understand that his fee would Supreme Court of Alabama ordered that Carmon be suspended cover Uleappeal for the son, on both the state and federal level. for havingcommitted multiple violations of Ule Code of Profes A letter from Bivensto the mother supported the mother and sional Responsibilityof the Alabama State Bar. IASBNos. 89- son's interpretation of their employmentcontract wiUlBivens . 99(A), 89-173. 89-341 & 90-7751 Bivensinitially informed his clients that the appeal would be ready to file in January of 1988. However,this was not done. • On May18 , 1995.the DisciplinaryCommission of the Alaba There were numerous requests from the clients for information ma State Bar ordered that Gadsden attorney Joseph Gullatte concerningUle status of the case beginning in April of 1988.and Hunter, lII be interimly suspendedfro m the practice of law in continuing up and until the clients filed a grievance against the State of Alabamapursuant to Rule 20 of the Rules of Disci Bivensin Decemberof 1993. plinary Procedure. !Rule20(a); Pet. # 95-02) • 248 I JULY1995 THE ALABAMAL<\WYER RECENTDECISIONS By DAVIDB BYRNE,JR . and WILBURC. SILBERMAN We conclude lhal Alabamacase articulated a three-stepprocess f1>r prov 1 SUPREME COURT law recognizeslhat large sums or Ing such violations. First, a pattern of OF ALABAMA cash arc relevantand material to a peremptory challenges of black jurors charge of constructive possession may establish a prima facie case of dis Teleph.onepager and S800 in cru;h can of a controlled substance, and our criminatory purpose. 1\.o, the p~cu be cotUlrudiv e evidence of drug pos caselaw supports the admissionof lor may rebut that prima facie case by session the evidence regarding the SSOO tendering a race-neutral explanation for Rowell11. Stale, 29 ABR359 (JanuaT)• found in the bool in the trunk of the strikes. Third, the court must decide 1995). Is evidence of $800 cash and a Rowell's car. whether the explanation is pretextual.A l telephone pager admissible Lo prove Accordingly, the SSOOand lhe tele the second step of this inquiry, neither possession or cocaine? In an opinion phone pager were properly admitted lo a mere denial of impropermotive nor an authored by the chiefJustice, the Alaba prove the defendant's constructive pos incredible explanation will suffice to ma Supreme Court answered in lhe sessionof the cocaine. rebut the prima facia showing or dis• affim1ative. criminatorypurpose . Rowell was arrested for illegalposses At a minimum.as the court earlier held sion of cocaine roll o,ving a policesearch in 8oiso11,lh e prosecutor "must articu of an automobile co-owned by Rowell late a neutral explanationrelated lo lhe and a friend, who h.,d recently died and particular caseto be tried." against whom cocainecharges had been ls Batsa11a lwo-slep or a wall%for The supreme court's seven-to-tworul pending at the lime of his death. The the prosecution? ing held. "that the Court of Appealsfor search, which was performed pursuant Purke/111.Elem, No.94-802, 1 995 WL lhe Eighth Circuit erred by combining to a search warrant, disclosed a match 283453 (May 15, 1995). The supreme 8atson's second and third steps into box containing crack cocaine under the court made it easier ror prosecutors 10 one, requiring that the justification ten carpet of the floor on the. dri\-er's side counter allegations that they have dtred at the secondstep be nol just neu andSSOO in cash hidden in a boot local impropuly eliminated potential jurors tral, but also minimally persuasi\'t, I.e., ed in a trunk of the automobile. Al the based upon nee. a "plausible" basis for believingthat lhe lime or Rowell's arresl, he was found The supreme court's May 15, 1995per person's ability lo perform his or her wearing a telephone pager (beeper). Al curium decision held that prosecutors duties as a juro r will be affected. It is trial. Rowell'slawyer made a motion In faced with a 8atso11objection do not not until the third step that the persua limine to e.~cludethe evidence regard necessarily have to offer a "persuasive siveness of the justification becomes Ing lht telephone pager and the cash or t'>'ffl plausible" reason for their jury relevant. a st~p in which the trial court that had been found in the search of selection tactics. Instead, it is up lo the determineswhether lhe opponent of lhc Rowell'scar. defendant to convince the judge that s1rike has carried his burden of proving Ulti matel y. the Alabama Court or racial cons iderations motivated the purposeful discrimination."The court's Crimin;il Appeals ruled that the lrlal exclusionof a potential juror. reasoning went on to stale, "... Al that court had erred in allowingthe evidence The supreme court's ruling, without slil(!e,implausible or fantasticjusllfica lo be admitted holding lhal although oral argument, reinstated a Missouri l1onsmay (and probablywill) be found lo the evidence would be material to a man's robbery conviction by reversing be pretexts for purposeful discram,na charge orcocaine distribution, it ,vas the Eighth Circuit Court or Appeals tion. But lo say that a trial judge may not material on Lhe charge or cocaine which had held thal two black men were choose to disbelieve a silly or supersti possession. The Alabama Supr eme unlawfullyexcluded from the trial jury. tious reason al step lhree is quite differ Court reversed and remanded lhe case. The Eighth Circuit had dismmed as ent from saying that a trial judge must Alabamalaw is nol clear on what type implausiblethe prosecutor'stxplanalion terminate the inquiry at step two when or circumstantial evidencemay be used that he did nol like the way the two the face-neutralreason is silly or super lo show that the defendant had knowl men lookedbecause they had long curly stitious. The !alter violates the principle edge or drugs loc.itedwithin a car, nol hair, were unkempt, and had facial hair. Lhal Lheultim~l ~ burden of persuasion in the defendant's exclusive possession. Byway of brief review, the supreme regarding racial motivation rests with, Mowewr. it is common knowledge1h31 court's 1986decision in Batsonhe ld lhal and never shirts from, lhe opponent or telephone pagers and large sums of the Equal Protection Clause of the the strike." cash are often associated with the ille· Fourteenth Amendment forbids a pros In a slinging dissent. Justices Steven$ gal sale or drugs and constitute, so to ecutor to use peremptory challenges lo and Bre>'er wToleas follows:"Today, with speak. tools of the trade. Chief Jusllce exclude African Americans from jury out argument , the Court replaces the 1 lornsby ultimately concluded: service bec.auseor th eir race. The court Balson standard with the surpris ing THE ALABAMALAWYER JULY1995 / 249 announcement that any neutral expla lo ask that a prosecutor's explanation Court amrmed. nation, no mailer how 'implausibleor for his strikes be race neutral. reason The United States Supreme Court lant:astic.'ante, at 3. even if il is 'silly or ably specific,and trial related. Nothing granted cerliorqrilo reviewlhe Alaba suptrstilious; ibid., is sufficientto rebut less will sel\'t to rtbul the inferenre or ma capital sentencing scheme. Nearly a prima fade case or discrimination. A race-based discrimination lhal arises 25 percent of Alabama'sdeath row pris trial court must accept that neutral when the defendanthas madeout a prima oners receive life without parole ver explan.itionunless a separate'slep three' fade case. dicts by the capital jurors who hear inquiry leads to the conclusionlhat lhe their cases.Alabama is the only slate in peremptorychallenge was raciallymoli· Supreme Court upholds judge over· the country which permits a trial judge vated. The Court does not atte.mpt to ride In Alabama capita l cases to overridea Jury verdictor life in a capi· explain1vlw a statement that 'the juror Harris v. Alabama. No. 93-7659, 63 tal casewithout directingor guiding the had a beard,' or 'the juror's last name LW4147 (February21, 1995),The United judge's considerationof the jury's sen began with the letter 'S" should satisfy Sll!tes Sut>reme Court has upheld the tencing recommendation. Three other step two, though a statemenl thal 'I had constilutionallty of Alabama's override states that permit judge override or a a hunch' shouldnot ... It is not too much scheme In capital cases by concluding Jun• verdict of life without parole have that the Eighth Amendment does not required their judges to conform to "require the State to define the weight some legal standard, i.e., yardstick,lhat the sentencing judge must give to an David a. is reviewabteto the litigants and to the Byme , Jr. advisoryjury l'trdic:t." court. DI..:! 8 er,.. Jr ,s • Alabamalaw \'eStscapital sentencing The Supreme Court. in a decision authority in lhe trial judge, but requires authored by Justice O'Connor,held that ""'"'-"' ...._. the judge to "consider"an a,Msoryjury ,- rec-e,veO...... boCh- l'llS · the Eighth Amtndme.ntdoes not require ...-V,"""8U!i<10 ..... verdict.After LouiseHarris was convict· the Slate to dellnt the weight lhe sen clov'-He40- ed or capital murder. the jury recom tmcing judge must gil't to an advisory """ "'""'d R-, &- mended lhat she be imprisoned for life jury verdict. Because the Constitution ..and OCM!f5 Chea11Tlll'1al - without parole, but the trial judge sen permits the trial Judge, acting alone, to tenced her to death by concludingthat Imposeb capital sentence.see Spaziano - the statutory aggravatedcircumstances v. Florida,468 U.S. 447, 465, it is not WIibur o. found nnd consideredby the court out offendedwhen a slate further requires Silberman weighed al I the mitigating circum lhe judge to consider a jury recommen WIiburG SIiberman.or stances. The AlabamaCourt or Criminal moS1rm•npham fitm of dation and trusl a Judge 10give it the Got-s.-. Appeals affirmed the conviction and proper weight. Alabama's capital sen W,gglnoI, CIWof, a1, sentence rejecting Marris's argument tencing scheme is much like l'lorida's __lenoed Samfo-d.,. Unt that the capital sentencing statute is excepttfiat a Floridasentencing judge is unconstitutional because it does not required to give the jury's recommen Un,vors,ty"' - o"deomedh5-de- specify the weight the court must gh-e dation •great weight." Tedderd. Stale, O'M frO"l"I~tie Lh-....etsi• to the jury's recommendation.and thus. 322 So.2d 908, 9/0, while an Alabama IY't Sdlool cl.._1-',o ..._...... _ permits the arbitrary imposition of the - death penalty. The AlabamaSupreme conlinuud on page252 EXPLORE YouR OPTIONS. (Berrer yet, let us do it for you.) We rcaliu )'OU :arc f.icc:dwith mmy m•lprocucc1n. ALL.SOUTH Travelers lnsurance • ...... ,..,Tra,-.kn(;rou;tf' Allwulh Profesuon.dWbtlhy, Inc.• /ul.t.11t11• Cf'Otgll • ·rr.. ,·clm lr1 250 I JULY1995 Tl Lt ALABAMALAWYER • For as littl e as $130 * a month. WhenJeff Resnicksaw all the benefitsLEXIS* MVP offered,he said. 0 Wheredo I sign?'. Unlimitedaccess to state law - statutes, cases,administrative decisionsand more. Up-to-dateonline searchingwith simple EnglishC011m10Jtds. All {or a low {lat monthlyfee with no minimum subscriptionperiod and no cancellationfee. With LEXIS MVP,your researchcosts are completelypredictable. It reallyis the Most Valuable Part of LEXIS* for small law firms. A memberservice of ...... - - - ALABAMA STATEBAR 1-800 -356 -6548 • LEXJS'·NEXJS' Q.., ...... J ...... __,..,.. rr a transfer made between 90 Recent Dec isions PRACTICET IP: The writer suggests that becausethe FourteenthAmendment daysand one year beforethe filing QJntinuedfrom page :U9 issueor judge 0\-trridemay still be viable. of Lhepetition- attorneys should continue challenging judge is not. ( l) is avoidedunder section 547(b) the legitimacy of death sentences The Supreme Court further reasoned or this title: and imposed\\-here Juries ha\oereturned life that, • •.•to impose the Tedder standard here wouldoffend established principles verdicts. (2) was made for the benefit or a In lengthy dissent, Justice Stevens go"erning the cnteria to be considered a creditor that at the time or criticizedAlabama·s scheme and focused by the sentencer, See e.g., Franklin u. such transfer was an insider: on the "realworld issue" of whether elect lynaugh, 487 U.S. 164, 179. and would lhe trustee may not recover ed polilics might Influence judicial placewilhin constituUonal ambit micro under subsection decisionmaking in hard cases. management tasks thal properly rests (a) from a lransreree that is not an within the State's discretion lo admin insider. ister its criminal justice system." Interestingly,the Co1.1rtdid not address RECENT BANKRUPTCY LEGISLATIVE COMMENT This amendedsectio n was intendedto whether Alabama'soverride syste m may overrule the DePrizio line of cases by violate the Fourteenth Amendment's verifying that non-asset transferees EqualProtection Clause under those cir Bankruptcy Code §550(c) under the should not be subject to preference cumstances where particular bias can 1994Amendments now providesas fol claims beyandthe 90-daystatutory peri be establisMd. lows: od. The DePriziocase had ruled that paymentby the debtor to a non-insider lender which held a persooalguarantee from an insider more than 90 days pre ceding bankruptcy but Jess than one year could be a preference under sec tion 547(b). for the reason thal the transfer benefllted the insider guaran tor. As noted; the amendment provides that the transfer can only be recovered ~ MoreChapter 13 from the insider guarantor who is the partyactua lly receivingthe benefit,and TrusteesWant not from the non-insiderlender. Bankruptcy scholarsare now point ing out that the ReformAct amend PLAN13! ment did not amend subsection547(bl which beginsas follows: ••• the trustee may amid any ~ MoreBankruptcy transfer of any interest or the debtor in property.. • LawyersSubmit As this subsectionwas no t amended,it still can be contendedthat if the debtor granted a lien to a non-insiderhold ing PLAN13! an insider guaranteeduring the one-year DEMO DISK• REFERENCES• MONEY BACK GUA RANTEE preference period for insiders. lhe granting of such lien to an insider may still be avoided.I( courts followJustice Scalia on the Ron Pair Enterprises CALL800 BEST-7-13 SupremeCourt case, then lien a~'Oidance under section 547 will remain as a rem edy, separate 3nd distinct from section &CHAP7**13 550 properly recovery. Conversely if courts followwhat was undoubtedlythe SpedollySolmre • 1111S. Woodwurd • loyal Ook , Mkh. 48067 intent to include lien amidance in the amendment, then the courts will write ··result-oriented"opinions. T he Eleventh Circuit has already adopted DePrizio, and Ihus it remainsl o be seen as to what will occur with the courts in this circuit. 252 /JULY1995 THE ALABAMALAWYER I the followingday SIS.ODO was deposited. H on June 15. no transfer was effected ' BANKRUPTCY On June 17. the court entered an order until June 17. Judge Posner took issue on the garnishment directing the bank with the argument of L-H that the date to pay the judgment, which was done. of serviceof the notice was the criliClll FOT preference determination date, On September I 4. PreedomCroup filed day because ii perfected lhe creditor's Sen nth Circuit rules that gamlJh. bankruptcy. June 15 was 91 days before claim lo the contents of the bank ment or attachment does not tran,fer bankruptcy . the final order 0 11ga rnish account. He admitted thal different cir property to creditor until date of final ment was 89 days beforeba nkruptcy. As cuits have held that the lime begins order, or date attachment Is !slued a preferential transfer Is considered running on the date of the nolice, men avoidable to parties other than insiders. tioninginter olio In re Cornier, 733 F.2d In /he Molfl!r of FreedomCroup Incor only if made within 90 days before 1560 (11th Cir. 1984).H e believedthey porated,SOP .3d 408, 26 B.C.D.1147 (7th transfer, lime is most material. Judge no longer apply because of Bomhill u. Cir.March 14, 1995).Well-known Cin:uit Posner, in reviewing the Jaw. first Johnson. 112 S. Ct. 1386, 1389 (1992) Judge Richard A. Posner entered the declared that federal law governs the holding that a transfer of money in a opinionin this casewhich was submilled issue of when the transfer occurs, but checkingaccount (for determiningtime on stipulatedfacts. On June 2, Laphan· that state law determines the definition of preferential payment) occurs not Hickey(L- 11) obtaineda $7,335.49judg. of "property" and "interest in property.'' when the check is delivered, bul when menl against Preedom Croup In an The court noted that in Indiana, the paid. Following this reasoning, he deter Indiana state courl. Ten days later, the "notice of garnishment" prevents the mined thnt a garnishment or allach same court entered an order called debtor from withdrawing the funds,and ment does nol effect the transfer until n "notice of garnishment". which was further impressesa lien In favor of the final order of garnishment or att,,ch· seT\'tdon PreedomCroup's bank on June creditor for the amount due on lhe judg. ment issued. 15. l'reedom Croup had only around menl. The court thus held that although Comment: Thiscase should reopen the SIOOm the bank on the day seT\'ed,but there wasa lien imprwed in favorof L- holdings,pre-Bomhi/1 v. Johruon, in all On sale now ...... Alabama Pattern Jury Instructions, Criminal (1994) Developed by the Alabama Law Institute. revised in 1994 and edited by Judge Joseph A. Colquitt You need the book judg es use to instruct the jury! Covers nil major topics Including: Send mt _ copl•• 11 S85.00 each for • lolnl of$,______General Instruction s To Ordtr Defense s Mau 10: ABJCL£, Box 870384, Capital Cases TuJealoosa, AL 35487.0384 Phont: 14~27-6S 14 or l OS-348-6230 Danger to Perso n Fu : 105-348-1072 Property Damage Name,______Theft Forgery/Fraud Addr~•·------Miscellaneous Offenses City______ S1a1t,Z lp,______An other quality publicati o11b y : ABICLE 0 Check uclos.ct payable to Th • Onlvtrslt y or Alabama 0 VISA O Mu ltr THE ALABAMALAWYER JULY 1995 / 253 circuits. and there may be variances in the debtor on the premise that the fail and pay the tax fell within the exception the different stales. because of interpre ure to pay taxes did not constitute an to discharge, The EleventhCircuit said lo tation or stlte law. I suggest that if the attempt to evade or defeat his taxes under extend that holdingto the factsof this case reader has the ques tion presen ted, §523(a)(ll(C). Thedistrict court vacated would makeall tax debts non-discharge Alabamalaw as to definition of "proper the decisionof the bankruptcy court and able, rtas0ning that if Congresswished to ty" and "interest in property• be exam remaooedwith instructions to determine make all taxes non -dischargeable. il ined. and then considered together with whether debtor's failure to pay the wes would ha~ done so. The opinion com a close nading ol the garnishment and \\,as "Willful." The bankruptcycourt again pared IRC§720 1 with Bankruptcy Section attachment statutes. held the taxe.sdischargeable finding that 523(a)(l)(C),calling to attention that !RC debtor m3de no affirm.alive attempt to §7201 contained words referring to pay Eleventh Circuit hol.cb that tax lia evade his lnxes bul merely used his ment, viz "or the paymenl thereof", while blll t y la due discharge even if income lo pay other debts. On further the bankruptcy section omits the words debtor lmowlnlll.Yfailed to pay taxes appeal, the district court reversedholding referring to payment.ln §523(a)(I). Con In re Haas, 48 l'.3d 1153 (Jlth Cir.Mar. that debtor's failure to pay his taxes gressl imited the exceptionfrom discharge 30, 1995). 13et~en 1977 and 1985, debtor when he was financ ially able to and lo those taxes covered by §507(a)(8) paid no incomeor employment taxes,but choosing Instead to pay other obliga which includescertain taxesincurred with he did file tax returns. In 1987.he entered tions constituted a wiliruJ attempt to in three }'earsof bankruptcy.The Eleventh a guilty plea for failure to pay income evade his tax obligationsrendering them Circuit upon this basis held that the dis taxes from 1980 to 1982.and receiveda nondischargeable. The debtor then trict court erred in determining the tax suspended sentence of one year and five appe.iledto the Eleventh CircuiL lo be nondischargeable. years probation, conditioned upon The Eleventh Circuit, following Ron Comment: This case contains a disser remaining current on estimated tax and Pair, Inc.. 109 S. CL 1026, 1031 (1984). tation on statutory construction which paying monthly on the delinquencies. said the plain meaning of the statute could be helpful in non-related ca.ses. He complied with the conditions of his must be followed.Under section 523(a) Insofar as the particular holding is con probationuntll 1991 when debtor and his (l)(C). a debtor may not discharge a ta.x cerned, it seems rather clear that an wire filed a Chnpter 11 petition. The IRS "with respect to which the debtor made a affirrnancewould have made inoperati~ fileda claim for ~r $700,000,and debtor fraudulent return or willfullyattempted the implications orthe provisions of tiled an ndversary proceeding to deter in any manner to evade or defeat such §507(a) (8), that taxes incurred more mine dischnrgeability for the 1977-87 tax l:llX."The Sixth Circuit has held previous than three years previous ly are dis years. The bnnkn,ptcy court ruled for ly that a debtor's conscious failure to file chargcablc. • ALABAMA LA WYERS RESEARCH SERVICE Saves You Valuable Time The ALRS, a division ofTbe UM-ersityor AlabamaSchool ofL,w Libra,y, assiststhe bar wh.h their research needs..An attorney manager and second-andthird-year law studenlS utilize the state's largest law libraty 10 ftll your research requests. Our fee 1s$ 25.00 per hour for the resenrohand writing services. Computerand photocopycharges are separate and vary . Please call ALRS for more information. a LEGAL RESEARCH a PHOTO COPIES & FAXES a MEMORANDA u WESTLAW SEAR CHES PREPARATION UANDMORE Phone : 205-348-0300 fax : 205-348-1112 Box 870383 Tuscaloosa, AL 35487-0383 Fran Parker Tankersley, Manager Tl••Alaba ma lowy,,rs Reswr 254 / JULY1995 THEALABAMA LAWYER 1n 1944, .ervlng as president of the Spnng Hill Collegeand actfngas counsel MarionR. Vickers Mobile&r Associationin 1945,•nd par· to th• college during most of his acti\'C ticipating in numerous other civic and practice:and charitable affain.in and about the Cityof (\') serving as a trustee in connection hereas, Mobile:and w,th the charitable trusts created under Marion R. Whereas, Marion R. Vicker, practiced the willsof edward A. Robertsand Belle WVickers, ~ law in Mohllt more than 60 years, spe C. Rooerts,which trusts have been and distin,guishedmtm· cializing in busine.<$transactions and will continue to bea significantsource o( bcr or this :wocia "-as n.:ogruud ltld admirtd by hi$ feU°"· funding for charities ,n MobileCounty in tion died on Feb· IOW)•trsas bting skilled and ablt m this (ltrptluity; and ruary 2, 1995, and and other areas of the practice. Among Whereas, 1'1arion R. Vickers accom the MobileBar Asso· his many nccompllshmenls, of which be pli$htd many other things in his life,and ciation desires lo wasparticulnrly proud , were: was an Immenselych,,rming gentleman remember h11name and recogni« his (ii instigating;uid handling lh< trans with a magnetic personality,gifted with contributionsboth to our professionand ftt bYthe Clennon family of the Point an obility to visualiu ttonomic changes to this community;and Clear prop Sons of ConfederateVtlerans and attend Whereas.Richard 0. f"anl"'M alwaysa RichardO. Fant ed many national com-.nt1on1, always colorful personality who never > TU£ AL"\BAMALAWYER JULY 1995/ 255 Rn~nue. !Ir w>! a member of the First desires to spread upon its permanent WillardW. Baptist Church, Montgomery Rotary rocords • toktn ol our gratitude to the Livingston Club. and l'hi Camm:iinlta Social Fra Almi!lhlY/or allowingU$ to haveknown ttrmty. and to h.wt b«n MM!cintedwith this fine illard IV. Livingston. a distin Willard wasthe son or the late Chief and gent (OQtballfun, a decoratedU.S. Army \'tter· tho death of our brother. Warren, and WarrenS. Reese, Jr. an, w:,s educi,tedat &mes School, Har t> Thi!, Uabamalau.yt'T ·Memorials"section is designedto prc,,.idenll'mbers d the bat with infonnalionabout thede.lth of theircolleagues. TheIIW>amll St21t B.1t and the EditorialBoard ~'t no "\ll' ofknol-mg"ilen one of our membersis d«wed unlesswt 11tt notified.Please lllloetht time to pn,.'idous .,.;thth.lt infommtion.If )OU wishto writ.,somdhlng about the individual's lifeand profwianal acxomplbhrnmts forpul)l,cation in tht magazinr.please limit )"OUr c:ommtnts to 250words and send us a~ if passihle.We rt:s 256 / JUI.Y1995 THE ALABAMALAWYER stair as an :...i.lbnt dislrid att.omeyfrom unhl his unhmely duth; and ClaudeHarris, Jr. 1965 to 1976, an ad\uatr for -,cums of ll'htrn>. Claude,"'ho is sun'Ned b)•his crime, and • smunch supporter of lhe law bclowd ",fe. BarbaraC,,rk Harris,was tht here.is, ii is w/lh deep and abiding enforcement officus or this community; lllVinAfather of two sons. Jeffand Trip, and grief that the Tustaloosa County :md his 105$is a source of deep nnd abiding Wllar Associationrecords tht lam· Whereas,Claude continued his service griefto them all; and •ntnble death of an ttlttmed membtt of to the publicas curu1tjudge ol 1h,scounty ll'h.reas. it ma)•bte ~l succinctlysaid this association. Cbude Harm. Jr .. of and cirrull from 1977to 1985,ns an el«l'll of Claudethat he madea difference,• ,,.ry Tuscaloosa.Alab,um, on October2. 1994: pliuy admmlstratorof justiu; and poSitr.'tdifT plificd the good in attorneys. protecting Whereas, he devo1cd countless hours DavidB. Ellis the meek nnd mild against the strong lo charlt.ible evenlS and promoted good and powerful:and will among the community;and her EdwardB. Crosland WilliamLewis M cElroy AnnieL. Sorge &lh~Jd WilliamAubrey Domini ck MarcusEugene McConnell, Jr. MarionRichard Vickers Tusrulll<>SIJ Birmmgham Mob/It Admilled: 1929 Admilted: 1941 Mm1//cd: J!l2J Diud:April 27, 1995 l)iL'd:Apn1 25, 1995 Di'e1f:January 31, 1995 Tl IE ALABAMALAWYER JULY 1995/ 257 described by a journalist as a "fighter beloved professiona nd to his communi John PeterKohn who admired fighters;" and ty; \Vhereas.he. \\'as knO\vnas an adviserto Now.the re, be it resolvedb y the Mont hereas, John Peter Kohn, Jr. was 11(>\'Cmors,and was describedon the octa• gomery County Bar Associationthat the born on December27. 1902, the sion of his death by journalist llob associationpay special tribute lo u,e life Wson ol John Peter Kohn and Jngramas l)eing ..o ne of the most J)O\\ltr of John Peter Kohn. Jr. , a lawyer's Clementina Rebecc.i Cram Kohn, and lul behind-th°'scene power brokers and lawyer,w ho distinguishedhim self in so was a fifth generation Montgomerlan;his policymakers in Alabamapol[lics :" and many\\ 1ays as an out.standing memberof mother wasa great granddaughter of Whereas.h is celebratedcareer includ th< legal profession and as a distin General John Scott. a founder or Mont ed service as president of the Mont guished community leader. gon1ery: and gomery County Bar Association, special Beit further resolved that this resolu· Whereas,he attendedprivate schools in circuit judge in MontgomeryCounty in llon be spread upo11lhe minutes ol the Montgomery. and graduated from the 1961, MontgomeryCounty attorney . and MontgometyCo unty BarAssoc iation and Uni,,.rsity of Alabama:and a short tenure 3$ an associ.itejustict of thal a copy be senl to his surviv ing Whereas, he married Margaret Patte the AlabamaSupreme Court: and daughter. Mrs.D<>y Leale McCall, Jr. son Thoringto n, a fifth generaUon Whereas,John Peter llohn, Jr. died on Monlgomerian,whose lather, Jack Thor November27 , 1993, at the age0190:and W. MarieAnderson ington, was a prominent Montgomery Whereas,it is both fitting and proJl"r Secretary lawyer,and that the MontgomeryCounty 6ar Associ l\tontgomeryCo unty BarAssociatio n Whereas,Jo hn Peter Kohn, Jr. was a ation pay special tribute to Utis distin distinguishedlawyer, w ho frcquenUyrep guished lawyer and genUeman for the r~sen ted the underdogs. and was many years ol $frvicehe rendered to his In Buck's passing,Tusca loosa lost one Through his force ol personality, Buck Joe G. Bums o( its most unforgettable and best loved could traniform even a docket caUi nto a citizens,a fine attorney,a loving husband memorable occasion. oseph C. Bums, and lather, a sportsman, turkey hunter ll'his l)ilst year, for many ol us who Jr., '1lucl<" Bums extraordinaire, and a great friend to so ~v Bue~ Bu~, hashe ld !"oments of JM he wasknown many. disbe lief al the thought ol his passing. to the westAJabama Buck,vas a man withoul guile. a man The vividnessol the recollectionof Buck comll)unity lh;,l without pettinessa nd a man without ene• seems to deny his loss. ll is hoped to be ll"•ed him. died on mies. 110 small achievement. Buck's always so, (or those fortunate to have October 7, 1993. magic ,_..•• fundamental and dire.:t.... It called Buck Burns "friend.'' Buck had practiced wa. practice in Montgomeryuntil his death He wasa devotedhusba nd and father. MilesS. Hall 60 years later. In addition to his private and left -surviving him his wile, Louise, practic~ he served for a while as city his two children, Aon and Miles, and ilesS. Hall. a distinguishedmem • attorney for Montgomery.tie was presi· four grandchildren. ber or this associalion, departed dent or thinss~ciation in 1950, Miles Hall was respected as a lawyer Mthis life on July 29. 1994. MilesHall was a Masonand a member and as a gentleman by all members or Born ,n Kentuckyon April 5. 1909. he of the Oak Park MasonicLodge. Active in our professionwh o knew him well. We movedl o the Montgomeryarea with bis his church. he taught Sunday schoql and shall miss him. familyas a child, He attended school in held almost every office at Capitol Pintlala. Alabama,at Sidney Lanier High Heights Methodist Church. !le demon· W. Mark Anderson Schoolin Montgomery.and at the Univer strated his strong Christian beliei in the Secnlary sity of Alabama.He wasadmitted to the way he cilnducttd his own affairs and in ~1ontgomeryCo unty Bar Association practice or law in 1934 and continued to the wayhe dealt with others. 258 I JULY1 995 THE ALABAMALAWYER ee.,of CarrawayM~thodtst Medical Cen AnnieL. Sorge ter, follow attorneys of the bar. nnd the community al tariie benefited from the cr~s. Ann L Sorge, on actlvt many hours of ca.ring,dedication. advite member of tht Birmingham Bar and counsel she so freelyrendered: and W:Auociation and the Alabama Whereas, Ann is survived by her hus State Bar since 1975, died on Pebruary band, ltnymond O. Sorge: four THE ALABAMALAWYER JULY 1995/ 259 CLASSIFIED NOTICES RATES: Members: 2 free listings of 50 words or less per bar member per calendar year EXCEPT for position want · ed. or ·pas111onoffe red" hsnngs - $35 per Insertion ol 50 WOfds or less , $.50 per add1honal WOfd, Nonmembers: S35 per 1nseruon of 50 words or less, S.50 per add1tronal word . Classified copy and payment must be received accord ing lo the rot1ow1ng publishing schedule: July '95 Iss ue - deadline May 19, 1995 , September '95 Issue - deadline July 15, 1995, no deadline extensions will be made Send classlfled copy and payment , payable to TheAlabama Lawyer, to: Alabama Lawyer Classifreds, c/o Margaret Murphy , P.O . Box 4156 , Montgome,y , Alabama 36101. INSURANCE E XPERT WITNESS : 8485 , No rapresentallon is made that SERVICES Bad tallh fire claims. Origin and cause the quallry of the /age/ services 10 be consullanVexpert . Licensed adjuster for performed Is greater than the quality of DOCUMENT EXAMINER: Examination 29 years , Certified fire and explosion legal services performed by other of Questioned Documents. Certified 1nves11ga1or/1ns1ruc1or.Investigative & lawyers Forensic Handwri11ng and Document Flre Consullallve ServlCeS, Inc .• 3258 Examiner . Twenty -eight years experi Cahaba Heights Road , Birmi ngham , FOR SALE ence in all lorensc document problems. Alabama 35243-1614. Phone (800 ) Fonnerty, Chief Questioned Document 597-9204 Jim Posey, president . Fax LAWBOOKS: Save 50 percent on your Analyst, USA Criminal lrrvest,galion Lab (205) 967·2521 lawbooks . Call National Law Resource. oratories . Diplomata (oert1fied)-Bri1ish MEDIATOR : Auorney w11hex1ensive FSS . Dlplomate (ce rtified)-ABFDE . America 's larges, lawbooks dealer . mediation training. Graduate educallon Huge lnveniories. Lowest prices. Excel Member: ASODE; IAI; SAFDE; NACOL and experience In psychology. All types lent qualily . Satisfact ion guara n1eed. Resume and fee schedule upon request. of cases . WIii travei statewide. Reason· Call us lo sell your unneede d books . Hans Maye r Gldlon, 218 Me rrymonl able loe. Melissa G. Math, Chambless, Need she lving? We sell new. brand Drive, Augusla, Georgia 30907. Phone Cooner & Ma th , 5720 Carmichael (706) 860-4267. name, steel and wood shelving al dis· Road , Montgomery , Alabama 36117 . count prices. Free quotes . 1-800-279- Phone (334) 272·2230. Fax (334) 272- LEGAL RESE.ARCH: Legal research 7799. National Law Resource. 1955. No representation ls made that help. Exper,enced attorney, member of tho quaft{y of the legal services to be AlabamaState Bar slnc:e 19n. Access POSITIONS OFFERED performad ,s gmaler than the qua/tty of lo sla1e law library. WESTLAW avail· legal serv ice s performed by orher able. Prompt deadline seardles. Sarah la111)111S. IN-HOUSE LEGAL COUNSEL: Needed Kalhryn Farnell , 112 Moore Building, Immediately. Salary negotiable. 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Call Brad Boulevard, Mob,le, Alabama 36693. documents, medical records. wills. con Darnall (member ot 1he Alabama S1a1e uacts,deeds, ched September 8 Health Care Law • Birmingham [co-sponsored by Baptist Health System. Inc.] September 15 Legal Writing Workshop - Birmingham September 22 Expert Witnesses • Birmingham September 23 How To Prepare and Try a Soft Tissue Injury Case • Birmingham September 29 Recent Developments In Criminal Law and Procedure • Birmingham October 6 6th Annual Bankruptcy Law Seminar - Birmingham October 6 AUBA CLE Conference: Ethics fo r Lawyers and Judges • Auburn [co-sponsored by Cumberland School of Law] October 8-10 30th Anniv ersary Conference on the Voting Rights Act of 1965 - Birmingham (co-sponsored by the Birmingham Civil Rights Institute) October 13 Alternative Dispu te Resolution fn Alabama - Birmingham October 20 Winning Numbers: Accounting and Finance for Lawyers • Birmingham October 27 New Alabama Rules of Evidence • Birmingham November 3 9th Annual Workers' Compensation Seminar • Birmingham November 10 Advanced Jury Selection: Making the Process Work for You with William A. Barton · Birmingham November 17 Representing Alabama Businesses - Birmingham December 1 Employment Law - Birmingham December 1 Recent Developments for the Civil Litiga tor • Mobile December 7 Recent Developments for the Civil Litigator • Birmingham December 15 Class Action Lawsuits • Birmingham December 21-22 CLE By The Hour - Birmingham Brochures specifically describing the topics to be addressed and a listing of speakers for each of the seminars will be mailed approximately six weeks prior to the seminar. If for any reason you do not receive a brochure for a particular seminar. write Cumberland CLE, 800 Lakeshore Drive, Birmingham, AL 35229-2275, or call 870-2865 or 1-800-888-7454. Additional programs and sites may be added to the schedule. West.The most complete CD-ROM libraryin Alabama. AUUMA UPOfhEJt " AND W'EST'S• ALAIIAMA CODr ON CD•ROM GIVl.5 YOU .. 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